New Ethical Rule from the Pennsylvania Supreme Court Opens Up Opportunity for Medical Marijuana Practices

November 14, 2016

by Erica L. Laughlin, Director[1]

NOTHING IN THIS DOCUMENT IS INTENDED OR SHALL BE CONSTRUED AS ADVICE TO PARTICIPATE IN, OR COUNSEL WITH RESPECT TO, CRIMINAL OR FRAUDULENT ACTIVITIES. POSSESSION, DISTRIBUTION AND SALE OF MARIJUANA IS A SERIOUS CRIME UNDER FEDERAL LAW, AND ENGAGING IN THOSE ACTIVITIES WITHOUT REGISTRATION UNDER THE PENNSYLVANIA MEDICAL MARIJUANA ACT, 35 P.S. §§ 10231.106 ET SEQ., IS A SERIOUS CRIME UNDER PENNSYLVANIA LAW. NOTHING HEREIN SHALL BE CONSTRUED AS ADVICE TO VIOLATE ANY SUCH LAW.

On October 26, 2016, the Pennsylvania Supreme Court amended Rule 1.2 of the Pennsylvania Rules of Professional Conduct[2] to include a new paragraph (e), which provides:  “[a] lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.”[3] The new amendment to the Pennsylvania Rules of Professional Conduct is significant, as lawyers are now able to freely advise clients who wish to participate in growing, dispensing, or consuming medical marijuana as provided by Pennsylvania’s Medical Marijuana Act[4] (the “Act”) without violating the Rules of Professional Conduct.

Previously, the Pennsylvania Rule of Professional Conduct 1.2 prevented a lawyer from counseling or assisting a client to engage in conduct that a lawyer knows to be criminal or fraudulent. However, with the new amendment in place, lawyers can engage in conversation with clients who potentially wish to grow or dispense medical marijuana, as provided by the Act, without disciplinary action.

While Pennsylvania law has begun to establish a regulated medical marijuana market in the Commonwealth, federal law still classifies marijuana as a Schedule I drug.[5] Schedule I drugs are defined as those with “no currently accepted medical use.” Under federal law, it is still unlawful to manufacture, distribute, or dispense marijuana.[6] While it is unlikely that the federal authorities would bring criminal or civil action against an individual acting in accordance with the Act under current (pre January 20, 2017) federal enforcement policies, it is not clear whether enforcement priorities will change in a Trump Justice Department. On the other hand, many are hopeful that as more state laws establish regulated medical marijuana markets, the federal government will change the classification and legalize medical marijuana.

SMGG intends to stay at the forefront of legal developments in this area.  For questions, please contact Erica L. Laughlin or David L. Pollack of Strassburger McKenna Gutnick & Gefsky at elaughlin@smgglaw.comdpollack@smgglaw.com or (412) 281-5423.

[1] The author would like to recognize the significant contributions of John Scialabba, University of Pittsburgh Law School class of 2017, to this post.

[2] Codified at Pa. R. Prof. Conduct 1.2.

[3] In re Amendment of Rule 1.2 of the Pa. Rules of Prof’l Conduct, DISCIPLINARY RULES DOCKET NO. 147 (Pa. Oct. 26, 2016).

[4] Codified at 35 P.S. §§ 10231.106 et seq.

[5] See 21 U.S.C.S. § 812.

[6] Controlled Substances Act Section 841(a)(1).