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Counseling Clients on Marijuana Law: an Ethics Seminar

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Counseling Clients on Marijuana Law: an Ethics Seminar 2016 Mid-Year Meeting Counseling Clients on Marijuana Law: An Ethics Seminar Moderator/Speaker: Assemblyman Raj Mukherji (33rd District) CannaPharmacy Sciences/Compassionate Care Research Institute, Inc. Speakers: Senator Nicholas P. Scutari (22nd District) Law Office of Nicholas P. Scutari, Linden Assemblyman Herb Conaway, Jr. (7th District) Majority Whip Danielle Y. Alvarez, Esq. Lite DePalma Greenberg, LLC, Newark Mike Mooney, Senior Vice President USI Affinity, Philadelphia © 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research. NOTICE TO THE BAR ADVISORY COMMITTEE ON PROFESSIONAL ETHICS PROPOSED AMENDMENT TO RULE OF PROFESSIONAL CONDUCT 1.2 TO PERMIT LAWYERS TO COUNSEL AND ASSIST CLIENTS WITH REGARD TO NEW JERSEY MEDICAL MARIJUANA LAWS The Advisory Committee on Professional Ethics received an inquiry from a New Jersey lawyer asking whether he may, consistent with the Rules of Professional Conduct, represent a client whose business includes growing marijuana pursuant to the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-1 et seq. By a slight majority, the Committee found that lawyers may provide such services; it relied on public policy encouraging lawyers to provide legal services to businesses navigating the complex regulatory framework. But the Committee was vigorously divided- the minority asserted that the language of Rule of Professional Conduct 1.2( d) simply does not permit lawyers to provide legal services that assist a client in a business that is illegal under federal, though not state, law. The Committee, however, unanimously agreed that New Jersey Rule of Professional Conduct 1.2 should be amended to expressly allow lawyers to counsel and assist clients with regard to the New Jersey marijuana laws, provided they also advise their clients about federal law. The Committee further agreed that, given the current uncertainty, lawyers who assist clients to comply with the State medical marijuana laws should not face discipline while the Court considers amending Rule of Professional Conduct 1.2. The dilemma lawyers face arises from the fact that their client's business is illegal under federal law but permitted under State law. Rule of Professional Conduct 1.2(d) provides: A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law. A lawyer providing legal services to a client in the New Jersey medical marijuana business arguably counsels or assists the client in conduct that is illegal under federal law. Even assuming that the lawyer accurately conveys to the client the illegality of its activities under federal law and does not therefore "counsel" the client to engage in illegal activity, the provision of routine legal services, such as application for business permits or zoning variances, can be said to "assist" in an activity that the lawyer knows is illegal. The Committee presented the matter to the New Jersey Supreme Court and respectfully requested the Court to adopt an amendment to New Jersey Rule of Professional Conduct 1.2(d) to provide: A lawyer may counsel a client regarding New Jersey's marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy. The Court hereby requests the legal community and interested members of the public to comment on this proposed amendment to Rule of Professional Conduct 1.2(d). Written comments should be sent by June 20, 2016, to: Glenn A. Grant, J.A.D. Acting Administrative Director ofthe Courts Comments: ACPE/Medical Marijuana Law Richard J. Hughes Justice Complex P.O. Box 037 Trenton, New Jersey, 08625-0037 Comments may also be submitted via Internet e-mail to the following address: [email protected]. The Court will not consider comments submitted anonymously. Thus, those submitting comments by mail should include their name and address and those submitting comments by e­ mail should include their name and e-mail address. Comments submitted in response to this notice are subject to public disclosure. Please note that the Court takes no position on the underlying federal law. The proposed RPC amendment merely states that lawyers will not violate RPC 1.2(d) if they counsel and assist clients with regard to the New Jersey medical marijuana laws, provided they also advise their clients about federal law. //:;:1, . .~- . .~ /-&:- ~._./ Glenn A. Grant, J.A.D. Acting Administrative Director ofthe Courts Dated: May 19, 2016 2 Mike Mooney Senior Vice President –USI Affinity Mike Mooney is a Senior Vice President for USI Affinity. Mike is the Professional Liability and Consumer sales leader for USI Affinity. Mike is also responsible for coordinating the program management for USI Affinity’s endorsed insurance programs, including The New York State Bar Association, The New Jersey State Bar Association, DC Bar, Boston Bar, The State Bar of Texas, and The Association of Small Foundations. With more than 10 years of industry experience, Mike has worked extensively on many facets of insurance programs for professional service firms. Prior to joining USI Affinity, Mike spent over 8 years with Aon in a variety of management roles. Most notably, Mike was the Assistant Vice President and National Sales Manager for Aon Affinity’s Healthcare Division, and also spent time as the National Sales Manager for the AICPA Accountant’s Professional Liability Program. Mike also focused on the Professional Liability Program Management of accounts such as the AICPA, Academy of General Dentistry and Louisiana CPAs. Additionally, Mike spent time as a product lead on the Cyber Liability, Management Liability, and Employment Practices Liability programs. Mike currently sits on the Law Practice Management Services Committee of the DC Bar. Mike is a regular speaker and panelist for the Law Practice Sections of the NYSBA, NJSBA, and NJICLE regarding Insurance and Risk Management topics relative to the legal industry. Mike holds a Property and Casualty Insurance License in New Jersey and many non-resident Producer Licenses in a variety of other states. He graduated from Rowan University in New Jersey with a Bachelors Degree in Business Management. Assemblyman Raj Mukherji ABOUT RAJ A champion of the middle class and working families, Assemblyman Raj Mukherji proudly represents the 33rd Legislative District (Hudson County) in the New Jersey State Legislature. He is a former Deputy Mayor of Jersey City and former Sergeant in the Marine Corps Reserve. In the private sector, he is a lawyer and healthcare investor and was previously an information technology CEO. He is also an Adjunct Professor at New Jersey City University, where he teaches Constitutional Law. In the Assembly, he sits on the Budget Committee, responsible for crafting the state budget (approximately $33 billion in FY 2015), as well as the Commerce and Economic Development and Labor Committees. Assemblyman Mukherji is presently the only South Asian legislator in the state, the first Asian American legislator from Hudson County, and the only Bengali-American state legislator in the United States. In his first term, Mukherji quickly earned a statewide reputation as a prolific, effective lawmaker. He was a primary sponsor of numerous bills focusing on economic development and job creation; protecting seniors and expanding their access to healthcare and essential services; infrastructure; public safety; veterans; social justice; addiction prevention, treatment, and recovery; animal welfare; and a myriad of other issues of importance to his constituents. In just his first term, 52 bills prime- sponsored by Mukherji were signed into law by Governor Christie. He was named the Assembly’s "Humane Legislator of the Year" recipient for 2015 by the Humane Society and 2015 Legislator of the Year by the NJ Law Enforcement Police Officers Brotherhood. Assemblyman Mukherji was also named a 2015 honoree of the Boys & Girls Clubs of Hudson County for championing the expansion of teens’ access to mental health services, and he received the 2015 Legislator Award from the NAACP for his civil rights advocacy. The son of immigrants, Assemblyman Mukherji supported himself through high school, college, and grad school as an emancipated minor when economic circumstances forced his parents to return to their native India. After suffering a pituitary tumor, stroke, and other ailments, Raj's father - the late Asim Mukherji, an accountant and musician - could no longer work as a result of his health but could not afford health coverage without employment. This experience shaped Raj's perspective and interest in healthcare and inspired much of his subsequent advocacy in that field. Raj had founded
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