On September 21, 2022, the Advisory Committee on Professional Ethics issued Opinion 744, advising that lawyers may both (a) use regulated cannabis and (b) operate or invest in a regulated cannabis business, without violation of RPC 8.4(b) (regarding attorney misconduct).
RPC 8.4(b) provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
The Advisory Committee considered the question of whether the production, sale and use of regulated cannabis in New Jersey, which is legal under state law, but illegal under federal law, violates that provision. The Committee concluded that a lawyer’s conduct that fully complies with state law does not “reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” and therefore does not violate RPC 8.4(b).
The Committee, however, cautioned that an attorney using regulated cannabis in New Jersey should take care to ensure that any use of regulated cannabis not impair the lawyer in the provision of legal services, or otherwise limit the lawyer’s ability to provide independent professional judgment and render candid advice under the Rules of Professional Conduct.
Additionally, the Committee has issued a caution for lawyers intending to enter into a regulated cannabis business with a client. Specifically, under RPC 1.8(a), a lawyer should not enter into business with a client, including a cannabis business, unless: (1) the transaction and terms are fair and reasonable and are fully disclosed and transmitted in writing; (2) the client is advised in writing of the desirability of seeking independent counsel and is provided a reasonable opportunity to do so; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
Furthermore, any lawyer venturing into a cannabis business with a client must be aware of potential conflicts of interest under Rule of Professional Conduct 1.7(a)(2) if the lawyer invests in a client’s business and provides legal services to the client about the business.