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 , Jr. (7th District) Majority Whip Danielle Y. Alvarez, Esq. Lite DePalma Greenberg, LLC, Newark Mike Mooney, Senior Vice President USI Affinity, Philadelphia

© 2016 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 an Internet consulting and software development company while in middle school, grew it, and later sold it to a larger technology company to enlist in the Marines two weeks after 9/11 at age 17, where he served in military intelligence as a reservist. The young entrepreneur withdrew from high school after completing ninth grade to focus on his business endeavors and support himself after his parents were forced to move to India. At 15, he enrolled in an early college program at Bard College at Simon’s Rock and eventually earned a bachelor’s degree from Thomas Edison State University, an individualized Master of Liberal Arts focused on national security from the University of Pennsylvania, and a law degree (Juris Doctor), cum laude, from Seton Hall Law School, which he attended on a Chancellor's Scholarship.

At 19, Raj was a founder and Managing Partner of a public affairs firm that he grew into the state’s third largest lawyer-lobbying firm while learning the inner workings of the State House and becoming fascinated by the policymaking process. His clients included social justice causes, higher education institutions, Fortune 500 corporations, financial institutions, healthcare institutions, government agencies, and others. While serving as the firm's Managing Partner, Mukherji advocated to abolish the death penalty in New Jersey and replace it with life imprisonment without parole; lobbied for LGBTI equality; worked with the NJEDA and the Business Action Center in successfully advocating for job creation and tax credit incentives; successfully facilitated complex transactions, including the sales of nursing homes and hospitals; and secured millions in grants or appropriations for hospitals and nonprofit clients and advocated to expand Medicaid and charity care for the underprivileged, a cause especially dear to his heart due to his father’s narrative.

At 24, Raj was appointed Commissioner and Chairman of the Jersey City Housing Authority, the youngest in city history. At the state's second largest housing authority, he earned nationwide acclaim for his oversight and various reforms at the $75 million agency serving over 16,000 residents and approximately 6,700 households. At 27, he was appointed Deputy Mayor of Jersey City, where he served from 2012-13. At 28, Raj won a six-way Democratic primary election for Assembly by a 36-point margin in 2013 and won the November general election by a 20-point margin. He was reelected in 2015.

Nicholas P. Scutari was elected to the State Senate in 2003 to represent the 22nd District, which includes the Middlesex County municipalities of Dunellen and Middlesex, the Somerset County municipalities of Green Brook and North Plainfield, and the Union County municipalities of Clark, Fanwood, Linden, Plainfield, Rahway, Scotch Plains, and Winfield. A lifelong Linden resident, Senator Scutari began his career in public service in 1993 when he was elected to the Linden Board of Education. During his tenure, he served as Chairman of the Personnel, Insurance and Athletics Committees. Senator Scutari was elected to the Union County Freeholder Board in 1996. He served as Union County Freeholder Vice Chairman in 1998 and as Union County Freeholder Chairman in 1999. He is the youngest person ever to serve as Freeholder Chairman in Union County.

As Senator to the 22nd Legislative district, Senator Scutari has spearheaded several initiatives that benefit both the citizens within the 22nd district and the State of New Jersey as a whole. He is a strong advocate for insurance reform and has sponsored legislation to create a more consumer- friendly environment.

Another of Senator Scutari’s priorities is having a fair, competent, and qualified Judiciary in New Jersey. As the Chairman of the Senate Judiciary Committee, Senator Scutari is committed to the thorough vetting and scrutiny of judicial nominees and reappointments.

Senator Scutari also recognizes the importance of caring for the ill and infirmed of society. To that end, he is the primary sponsor of the ‘New Jersey Compassionate Use Medical Marijuana Act,’ which allows New Jersey citizens suffering from chronic and debilitating illnesses, for whom currently available treatments and medications have proven ineffective, to receive medicinal marijuana to treat and help alleviate their symptoms.

A practicing attorney with an office located in Linden, Senator Scutari is a member of the bar in both New Jersey and New York. He earned his law degree from Thomas Cooley Law School in 1993, receiving the John D. Voelker Award as Outstanding Law Review Associate. He graduated from Kean College with honors in less than three years at the age of 20, and received his Master’s Degree from Rutgers University in 1990 at the age of 21. Senator Scutari is a member of the Union County Bar Association, the National Bar Association’s Council of School Attorneys, the Middlesex County Bar Association, and the National Eagle Scout Association. In the Senate, he serves as Chairman of the Senate Judiciary Committee, Chairman of the Space Utilization Committee, and a member of the Senate Commerce Committee.