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    Marijuana may be legal, but the advice, for now, is not

    Cannabis has had a “rock and roll” history. Although it was legal, both federally and in the states up until the mid-1900s, in 1970, when Congress passed the Controlled Substances Act (CSA), marijuana was listed as a Schedule 1 drug, i.e., a drug believed to have “a high potential for abuse…no currently accepted medical use in treatment in the United States…[and] a lack of accepted safety for use of the drug or other substance under medical supervision," putting it in the same category as drugs such as heroine, ecstasy and LSD. [1] Starting in 1978, states began to disagree with the federal position and, to date, over 20 states (and the District of Columbia) have passed legislation permitting the use of marijuana (in varying fashions) for medical purposes. [2] Up until 2013, the federal government challenged many of these state actions either through raids on marijuana clinics or court challenges over legislation. In 2013, the U.S. Attorney General stated that federal funds would no longer be used for these purposes, and in 2014 the federal budget specifically precluded the use of federal funds for these purposes. But, so long as marijuana is listed as a Schedule 1 drug, growing it, distributing it or possessing it is a federal crime. This is the main reason why marijuana remains a “cash crop;” federally insured banks will not develop business relationships with entities involved in the “marijuana” business for fear of federal prosecution and sanctions.

    And as of August 11, 2016, the problem remains just as challenging in the State of Ohio. Although Ohio Sub. H.B. 523 (which permits the cultivation, processing, sale and use of medical marijuana) becomes effective September 8, 2016, Ohio’s lawyers may not “provide legal services necessary for a client to establish and operate a medical marijuana enterprise or to transact business with a person or entity engaged in a medical marijuana enterprise,” according to the opinion of the Supreme Court of Ohio Board of Professional Conduct (the Board). 

    The analysis is straightforward. Federal law trumps state law. The use of marijuana for any purpose is a crime, because it is a Schedule 1 controlled substance. A lawyer may not assist a client in conduct that the lawyer knows is illegal. Accordingly, providing legal services in relation to marijuana is no different than providing legal services in relation to heroin, ecstasy or any other Schedule 1 controlled substance. This includes completing and filing marijuana license applications, drafting contracts, providing representation before a regulatory board, and any other service or transaction involving marijuana. The fact that the federal government has stated it will not enforce the CSA is not relevant to this analysis. The Board’s position is one that has been taken by several other states and has resulted in a modification to the code of conduct in others. Whether Ohio’s Board will be willing to reconsider its position is still unknown.

    And, although there had been hope that the Drug Enforcement Agency (DEA) was going to “relocate” marijuana to another category, the DEA announced on August 11, 2016, that marijuana will remain as a Schedule 1 controlled substance because the DEA continues to be of the position that there is insufficient scientific proof that the drug has medicinal value. The announcement will be published in the Federal Register today.

    From a national perspective, something will have to change. The current situation — which places 50 percent of the states (and D.C.) in direct conflict with federal law is simply untenable.  And, although the Board’s opinion is logical, it places Ohio citizens in the situation of not being able to obtain legal advice from an Ohio attorney regarding implementation of legislation that has been legally passed (unless, of course, an Ohio lawyer is willing to do so in light of the Board’s opinion). 

    As such, Ohioans are in a position somewhat akin to the “don’t ask, don’t tell” era of who could be in the military. But we are not alone, and with yesterday’s DEA announcement, it can be expected that this issue will continue to stay on a front burner until it is resolved. 

    [1] Cocaine is a Schedule 2 drug.

    [2] Four states and the District of Columbia have also passed legislation permitting marijuana to be used for recreational purposes.

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