NY lawyers may work with adult-use marijuana industry, bar association says

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Lawyers are free to take part in New York’s adult-use marijuana industry despite federal prohibition, according to a new ethics opinion from the state’s bar association.

The opinion posted online by the New York State Bar Association (NYSBA) says that, in light of the legalization law signed by Gov. Andrew Cuomo in March, lawyers may now do the following without violating the NYSBA’s professional conduct rules:

  • Work with clients “in conduct designed to comply with New York’s Recreational Marijuana Law and its implementing regulations.”
  • “Accept an equity ownership interest in a cannabis business in exchange for legal services.”
  • Use recreational marijuana, and, when the law permits, cultivate marijuana plants at home.

The NYSBA previously allowed its members to advise clients in New York’s legal medical marijuana industry despite federal prohibition.

The bar association’s opinion said New York’s recreational marijuana licensing process “will function more expeditiously and with more consistency if lawyers can assist with preparing and submitting license applications and can counsel the regulators reviewing those applications.”

“More generally,” according to the opinion, “in a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value.”

As for using recreational marijuana, the NYSBA warned that excessive marijuana use, “like excessive consumption of alcohol, may adversely impact a lawyer’s ability to competently and diligently represent a client.”

“Nothing we say here connotes approval of such excessive use or establishes a protective shield for a lawyer who is facing disciplinary charges, malpractice claims, or other adverse consequences arising out of marijuana use.”

Bar associations in other legal markets have been mixed in their views on marijuana and their members.

Bar associations in New Mexico, Ohio, Oklahoma and South Dakota, for example, have cautioned their members about getting involved in the marijuana industry, while the Los Angeles County Bar Association actually established a new law practice focused on legal marijuana.