Friday, May 20, 2016

NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

As a member of the Advisory Committee on Professional Ethics I cannot comment- other than to say please do heed the Supreme Court's request for comments.  - GWC
Supreme Court of New Jersey
Proposed Amendment to RPC 1.2 Regarding Medical Marijuana Law -- The Supreme Court requests comments on the proposal by theAdvisory Committee on Professional Ethics for amendments to RPC 1.2 regarding representing clients with regard to New Jersey's medical marijuana laws. The comment period will close on June 20, 2016. Click here to read the notice and the ACPE's proposed amendments to RPC 1.2

NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

The New Jersey Supreme Court is considering a rule change that would ensure that lawyers who represent growers of medical marijuana don't face disciplinary charges, even though those lawyers may be assisting their clients in violating federal law.

In a notice to the bar released May 19 by Judge Glenn Grant, the acting administrative director of the courts, the Judiciary said the Advisory Committee on Professional Conduct had proposed a change to RPC 1.2.

An attorney, who was not identified in the notice, had asked the ACPC whether he could represent a client whose business includes growing medical marijuana under the auspices of the New Jersey Compassionate Use Medical Marijuana Act.

Gov. Jon Corzine, as he was leaving office in 2010, approved legislation allowing for the use of marijuana for medicinal purposes. Regulations permit businesses to grow marijuana under a license, and restrict sales to a limited number of other licensed dispensaries.

However, growing and possession of marijuana remains a violation of federal law. The federal government has chosen not to prosecute growers or dispensers of medical marijuana, as long as they are licensed and regulated in the various states that have enacted medical marijuana legislation.

Grant's notice said the ACPC, by a slight majority, ruled that an attorney could represent the grower. But, he said, a minority "vigorously" asserted that RPC 1.2(d) did not permit an attorney to provide legal assistance to a client whose business is illegal under federal law.

The ACPC unanimously determined that the rule should be amended to permit lawyers to represent such clients, provided that the attorneys advise those clients about federal law, Grant said.

RPC 1.29(d) says: "A layer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law."

The proposed amendment reads: "A lawyer may counsel a client regarding New Jersey's marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy."

Lawyers who represent defendants charged with marijuana offenses said the proposed rule amendment generally makes sense.

"If the Legislature has passed laws to address these types of businesses, attorneys should be allowed to represent those businesses" without the possibility of facing ethics charges, litigator James Seplowitz said.

"An attorney has a duty to advise the client on how other laws may impact the client's business," said Seplowitz, of Foy & Seplowitz in Hackensack.

"This provides more of a safety net for lawyers representing these clients," added litigator Timothy Farrow.

But Farrow, of Dash Farrow in Moorestown, also warned that the rule could pose certain dangers because of the complexity of federal marijuana laws.

"It may scare away more lawyers and that's not fair to clients who absolutely need a lawyer," he said.

Grant's notice acknowledged the difficulties lawyers face in assisting growers.

"A lawyer providing legal services to a client in the New Jersey medical marijuana business arguably counsels or assists the client in conduct that is illegal under federal law," he said. "Even assuming that the lawyer accurately conveys to the client the illegality of its activities under federal law and does not therefore 'counsel' the client to engage in illegal activity the provision of routine legal services such as application for business permits or zoning variances, can be said to 'assist' in an activity that the lawyer knows is illegal."

The Administrative Office of the Courts is accepting comments on the proposed rule change until June 20.

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