While marijuana is still illegal at the federal level (listed as a Schedule 1 drug), Maryland has, since 2013, taken significant steps to legalize marijuana and create a robust medical marijuana market with recreational use soon to follow. Given that marijuana remains illegal in the eyes of the federal government, what restrictions, ethical or otherwise, apply to Maryland lawyers in terms of the state’s medical cannabis program?
Maryland's Committee on Ethics (the "Committee") has already issued an ethics opinion, Number 2016-10, which addressed the issue of attorneys and medical cannabis and found that "Maryland attorneys are not prohibited under the Maryland Rules of Professional Conduct from advising clients as to medical marijuana business related activities in Maryland, or providing legal services such as contracting or negotiating to advance such projects; and Maryland attorneys are not prohibited [by the rules] from owning a business interest in such a venture."
The Committee did go on to note, however, the confusion as to whether marijuana remaining illegal at the federal level could theoretically implicate Maryland Rule 19-301.2(d), which prohibits an attorney from counseling a client to "engage, or assist a client, in conduct that the attorney knows is criminal or fraudulent…." The idea is that if a Maryland attorney advised a client on medical cannabis matters, he/she could potentially be assisting a client in violating federal law, which would violate Rule 19-301.2(d). The Committee ascertained that Maryland attorneys would not violate any ethical rules in providing guidance on cannabis-related matters given the state's regulatory scheme and public policy in favor of medical cannabis.
Indeed, the Committee specifically stated that even though marijuana remains illegal at the federal level, it believes "that the method for applying the Maryland Rules of Professional Conduct adopted in the MRPC preamble allows legal services to further the policy goals and expressly authorized activities under state law and allows attorneys to advise clients conducting medical marijuana activities within the State as to the ramifications of their activities as well as to also actively provide legal services beyond advice, including contract construction, negotiations, assistance in procuring state licenses, and any other legal service necessary to protect or promote business activities sanctioned by the statute, or to comply with the Maryland State Legislature's regulatory scheme of a business."
The Committee further noted that it did not believe the ethical rules prohibited attorneys from holding an ownership interest in a medical marijuana business, providing that the business conformed to Maryland's medical cannabis laws.
The bottom line: As of 2020, Maryland attorneys should not be fearful of violating the applicable state ethical rules in advising clients on medical cannabis-related issues or of being involved in the medical cannabis industry, assuming the business the attorney is involved with strictly complies with the laws applicable to Maryland’s medical-cannabis program. Maryland has a strong regulatory framework in place for medical cannabis and is pushing to legalize recreational cannabis. Nearly every other state is similarly implementing or working to implement its own medical cannabis program. Lastly, it is highly likely that marijuana will be removed from Schedule 1 of the Controlled Substances Act in the next several years, thereby taking away any remaining concerns that providing advice on marijuana-related issues somehow conflicts with federal law.
For assistance with understanding attorney ethical obligations in Maryland, contact the author, George Mahaffey.
