Legalized Medical Marijuana Leads to Proposed Change To Illinois Rules of Professional Conduct — Public Hearing On Change Set For July 22

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by Shelby L. Drury, Of Counsel, Novack and Macey LLP

Shelby L. Drury
Shelby L. Drury

In response to the passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act (the “Marijuana Act”) effective January 1, 2014, legalizing the use of marijuana in certain circumstances, the Illinois Supreme Court Committee on Professional Responsibility (the “Committee”) has proposed an amendment to the Illinois Rules of Professional Conduct.  The proposed amendment is intended to address the conflict between Illinois and federal law with respect to the use of marijuana. In particular, the proposed amendment would provide an express exception to Illinois Rule of Professional Conduct 1.2’s prohibition on a lawyer counseling or assisting a client to engage in criminal conduct and clarify any uncertainty with respect to whether an Illinois lawyer may provide legal advice on the matters covered by the Marijuana Act.

The proposed amendment is consistent with the Illinois State Bar Association’s Advisory Opinion No. 14-07, issued in October 2014 (the “ISBE Opinion”) on the issue.  In fact the ISBE Opinion concluded that “the provision of legal advice to clients involved in the medical marijuana trade falls squarely within” the exception already provided in Rule 1.2(d), which allows a lawyer to “discuss the legal consequences of any proposed course of conduct with a client” and “to counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.” ISBE noted that to reduce any uncertainty, “contemporaneously with the publication of [the ISBE Opinion], it is recommending to the Illnois Supreme Court Rules Committee” that it amend Rule 1.2(d) along the lines of a similar amendment to the Connecticut Rules of Professional Conduct.  The Committee’s proposed amendment is similar to the Connecticut amendment.

The Committee’s proposed changes to Rule 1.2(d) are below (changes are noted by striking through deletions and underlining additions):

“Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

(d)       A lawyer shall not counsel a client to engage, or assist a client, in conduct that the  lawyer knows is criminal or fraudulent, but a lawyer may

  • discuss the legal consequences of any proposed course of conduct with a client,
  • and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law, and
  • counsel or assist a client in conduct expressly permitted by Illinois law that may violate or conflict with federal or other law, as long as the lawyer advises the client about that federal or other law and its potential consequences.

See www.illinoiscourts.gov/SupremeCourt/Public_Hearings/Rules/.  In addition, the Committee has proposed 2 additional, but alternative comments to Rule 1.2 which are also found at the link provided above:

“[10]    Paragraph (d)(3) was adopted to address the dilemma facing a lawyer in Illinois after the passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective January 1, 2014.  The Act expressly permits the cultivation, distribution, and use of marijuana for medical purposes under the conditions stated in the Act.  Conduct permitted by the Act may be prohibited by the federal Controlled Substances Act, 21 U.S.C. §§801-904 and other law.  The conflict between state and federal law makes it particularly important to allow a lawyer to provide legal advice and assistance to a client seeking to engage in conduct permitted by Illinois law.  In providing such advice and assistance, a lawyer shall also advise the client about related federal law and policy.  Paragraph (d)(3) is not restricted in its application to the marijuana law conflict.  A lawyer should be especially careful about counseling or assisting a client in other contexts in conduct that may violate or conflict with federal, state, or local law.”

“Alternative–Comment Only–Limited to Marijuana Law Conflict

[10]      A lawyer does not violate Rule 1.2(d) by counseling a client regarding the validity, scope, and meaning of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective January 1, 2014, or by assisting a client in conduct that is permitted by the Act.  The lawyer shall also advise the client regarding related federal law and policy.”

A public hearing on the foregoing proposed changes as well as other changes to the Illinois Rules of Professional Conduct and Illinois Supreme Court rules is set to take place on July 22, 2015 at 10 a.m. in room C-500 of the Michael A. Bilandic Building, 160 N. LaSalle Street, Chicago.

The “Notice of Public Hearing” issued by the Committee states that it “invites public comments on the proposals.  Written comments should be submitted Wednesday, July 8, 2015, to jzekich@illinoiscourts.gov or mail to:  Committee Secretary, Supreme Court Rules Committee, 222 N. LaSalle Street, 13th Floor, Chicago, Illinois 60601.  To be scheduled to testify at the public hearing, please send an e-mail or written request to the Rules Committee Secretary, as noted above, by no later than Wednesday, July 15, 2015.”

Visit this blog after the hearing for an update.

(This is for informational purposes and is not legal advice.)

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