Representing Cannabis Clients: The Legal Ethics

New Jersey Marijuana

This story out of New Jersey discusses the difficulty Compassionate Care Foundation has been having in hiring an attorney to represent it in defending against an employment claim brought against it by its employees.

Regardless of what side of the battle you find yourself on, I think we can all agree that both employers and employees should have counsel when litigating labor disputes. Attorneys are good at distilling the issues and presenting them to a court, and their expertise and creativity can yield good and efficient solutions to the sort of problems that end up being litigated.

In this case, the employer has had trouble finding an attorney primarily because New Jersey’s state ethics rules for its lawyers present challenges. Under most state ethics standards, an attorney cannot assist a client with any illegal activity. Marijuana is still illegal federally, so clients that manufacture and distribute or dispense marijuana are committing federal crimes. This can present problems for lawyers.

In some states, like Colorado, Arizona, and Washington, there is something attorneys can point to that clarifies that they are not acting unethically in help cannabis clients so long as the goal of representation is to maintain at least state law compliance. In Arizona the state bar released an ethics opinion discussing the bounds of ethical legal work. In Washington a new rule addendum was added to the state ethics rules footnotes and before that, my law firm received its own ruling regarding our ability to represent cannabis clients. In Colorado, the State Supreme Court actually changed the state ethics rules themselves to make clear that attorneys could practice in the cannabis field and still uphold their ethical obligations.

New Jersey though has no such added protection for attorneys. That does not keep all attorneys out, of course. There are any number of criminal attorneys and small-time business attorneys that are willing to take some risks in order to get the work. But if you are a marijuana business and you want an attorney with real expertise, that is harder to find. Attorneys are generally have a low tolerance for risk and few are going to be willing to “get out in front” of an ethical issue like this.

So at this point, New Jersey is essentially saying that it would prefer its marijuana businesses have no lawyers or bad lawyers or unethical lawyers instead of top tier lawyers. This sort of short-sightedness is not good for anyone other than the most rabid cannabis hater. Other states have shown that tweaks to their standard ethical rules are not that tough and that they work fine. So we encourage every state to hop to it, staring with New Jersey.

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