The stark differences between federal and state-level laws regarding medical marijuana have long become a roadblock for its patients — and their lawyers. While certain restrictions are often lifted in compliance with state medical marijuana ordinances, the matter, from a legal and professional standpoint has remained somewhat in a gray area.
In New York, the landscape of legal marijuana is even more convoluted. For years, medical marijuana has legal — but you couldn’t smoke it — and pot for recreational purposes has been decriminalized, but it’s still illegal. Perhaps unsurprisingly, this has led to some question marks when it comes to law-related issues. Specifically, for New York-based lawyers with clients who have their own history of using medical marijuana.
However, the prestigious New York Bar recently went out of its way to shed some light on whether or not attorneys can help their clients comply with New York’s state-mandated medical marijuana laws.
New York State Bar Gives Attorney Advice
The New York State Bar recently shed some light on the matter, due to the ever-evolving landscape of legal cannabis. Through an opinion from the N.Y.S. Bar Ass’n Comm. on Prof’l Ethics, Op. 1177, the Bar reaffirmed that attorneys can, in fact, work with clients in compliance with New York State’s medical marijuana laws without breaking professional ethics Rule 1.2(d), which prohibits counseling a client to break the law.
While federal law does prohibit medical marijuana usage, there have been some exceptions made in the past, most notably, the now-rescinded Cole Memo, which put restrictions on federal marijuana law enforcement when individuals were in accordance with state MMJ regulations, and the Rohrabacher-Farr amendment, which prohibits the Department of Justice from using their funds to prevent medical marijuana states “from implementing their own State laws that authorize, the use, distribution, possession, or cultivation of medical marijuana.”
Then, back in 2014, the Bar determined — based on those two amendments — that it would be legal to counsel a client for medical marijuana law-related issues. However, the Cole Memo was rescinded in 2018 by then-Attorney General Jeff Sessions, leaving the Bar’s position on the matter in flux.
But the Bar recently reinforced their aforementioned stance through their opinion.
“Implicitly, the state law authorizes lawyers to provide traditional legal services to clients seeking to act in accordance with the state law.,” the Bar stated. “Nothing in the history and tradition of the profession, in court opinions, or elsewhere, suggests that Rule 1.2(d) was intended to prevent lawyers in a situation like this from providing assistance that is necessary to implement state law and to effectuate current federal policy.”
Changes to New York’s Marijuana Laws
There have been a few drastic changes to New York’s laws on marijuana. Most notably, the recent statewide decriminalization of cannabis, The new laws deem possession of less than two ounces of marijuana a violation, not a crime. It also decreases the fine for possession of less than an ounce from $100 to $50 without increasing because of an individual’s criminal history.
Furthermore, past convictions for marijuana possession of 25 grams or less are now automatically expunged. Cannabis has also been added to the definition of smoking in the Public Health Law, essentially barring anybody from smoking cannabis in public areas where even tobacco is not allowed.
“It makes something that was a misdemeanor now a violation, and it automatically expunges old misdemeanor convictions,” Emma Goodman, a staff attorney in Legal Aid Society’s special litigation unit said. “That’s more than a lot of states have done. The problem is that it’s just getting rid of one very small amount of low-level offenses and it’s not actually legalizing marijuana … violations are still arrestable offenses in New York.”
Although full-on legalization still remains in the fold — and is certainly coveted by many lawmakers in Congress — decriminalization has served as a step in the right direction.
“While this legislation falls short of the goal of legalization of adult-use cannabis, the ability to create a mechanism for expungement, both retroactively and forward-looking, is a step in the right direction in finally ending the heavy-handed war on drugs that has decimated communities of color, ” Sen. Jamaal Bailey (D-Bronx) said after the bill was passed in June.
Others throughout the industry are also high on statewide legalization, but caution that both sides will likely have to make concessions.
“I think it will happen, but it’s not going to be a perfect bill for everyone,” said Kaelan Castetter, CEO of Binghamton-based cannabis company Castetter Sustainability Group,