The State Bar seeks public comment on Proposed Formal Opinion Interim No. 17-0001 (Advising a Cannabis Business)
Deadline: February 24, 2020
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with State Bar policy and procedure, the Committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which will go into effect on November 1, 2018. Information about the new rules is available at the State Bar website. Proposed Formal Opinion Interim No. 17-0001 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 17‑0001 considers: May a lawyer provide advice and assistance to a client with respect to conduct permitted by California's cannabis laws, despite the fact that the client's conduct, although lawful under California law, might violate federal law?
The opinion interprets rules 1.1, 1.2.1, 1.4, 1.4.2, 1.6, 1.7, 1.13, 1.15, 4.1, and 8.4 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068, 6101, 6102, 6103, and 6106; and Evidence Code 956.
The opinion digest states: A lawyer may ethically advise a client concerning compliance with California's cannabis laws and may assist the client in conduct permitted by those laws, despite the fact that the client's conduct may violate federal law. Such advice and assistance may include the provision of legal services to the client that facilitate the operation of a business that is lawful under California law (e.g., incorporation of a business, tax advice, employment advice, contractual arrangements and other actions necessary to the lawful operation of the business under California law). However, a lawyer may not advise a client to violate federal law or provide advice or assistance in violating state or federal law in a way that avoids detection or prosecution of such violations. The lawyer must also inform the client of the conflict between state and federal law, including the potential for criminal liability and the penalties that could be associated with a violation of federal law. Where appropriate, the lawyer must also advise the client of other potential impacts upon the lawyer-client relationship, including the attorney-client privilege, that may result from the fact that the client’s conduct may be prohibited under federal law.
At its June 7, 2019 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 17-0001 for a 90-day public comment distribution. Subsequently, at its December 6, 2019 meeting, COPRAC revised the opinion in response to public comment and approved Proposed Formal Opinion Interim No. 17-0001 for an additional 60-day public comment distribution.
State Bar Standing Committee on Professional Responsibility and Conduct
February 24, 2020
Office of Professional Competence
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639