Ohio attorneys were assured Tuesday by the state’s high court they could assist medical marijuana clients under the new law. A non-binding advisory opinion issued in August suggested Ohio lawyers couldn’t advise medical marijuana businesses and patients under the state’s professional conduct standards because the substance remains illegal federally. Bringing the uproar surrounding attorney representation of Ohio medical marijuana clients largely to an end, on September 20th the Ohio Supreme Court formally adopted an amendment to Prof.Cond.R. 1.2(d). The new Rule 1.d(d) reads:
(d)(1) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law.
(2) A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.
As amended, this rule change would resolve the concerns of many lawyers, including westlake attorney Thomas Haren with Seeley, Savidge, Ebert & Gourash Co. LPA, who originally submitted the rule change to the Ohio Supreme court regarding the representation of clients in the medical marijuana industry.
In addition, this change does not address whether the Rules authorize an attorney to use medical marijuana or whether an attorney may own and/or operate a medical marijuana establishment. Those issues continue to be addressed only by the August advisory opinion.
Thomas Haren, who requested the initial advisory opinion, said he was satisfied with the rule change but would have liked to see the court allow more leeway in interpreting Ohio’s law, as Alaska did in its ethics standard. Ohio’s new law establishes a structure for the medical marijuana program but many of the details will be drafted in the coming months by three regulatory agencies.
“The only time that we may still have a gray area is on the margins where a client asks an attorney to determine whether something is permitted under the law and it’s not clear,” Haren said.