Ga. Needs To Resolve Cannabis Counsel Confusion
Law360
In early March, Georgia's Access to Medical Cannabis Commission finally adopted rules governing the state's low-THC oil industry.
As businesses navigate this new landscape, legal questions will inevitably pop up. And lawyers, being trained to answer them, will want to address their clients' questions. But a ruling from the Georgia Supreme Court means that Georgia lawyers generally cannot ethically advise participants in this new program.
There may be no area of the law that is more fluid and complex than U.S. cannabis law. The cannabis industry has developed within the context of conflicting and evolving federal and state laws, and businesses in the industry must navigate a wide array of legal challenges. These challenges extend to those businesses that provide services or otherwise interact with cannabis companies.
All of this means that a lot of questions arise in the cannabis space. And while lawyers may not be the answer to all of the world's problems, they are at least trained to address the complex web of laws governing the cannabis industry.
As a most basic and relevant example: What is a citizen of Georgia to do if they seek legal counsel to avail themselves of Georgia's medical cannabis law when federal law appears directly to the contrary, even though the federal government has made it clear that it will not enforce its prohibition except under rare and specified circumstances?
And relatedly, what is a Georgia attorney who wants to counsel their clients on tricky new cannabis issues to do?
When faced with that question in June 2021 in In Re: Motion to Amend 2021-3, the Supreme Court of Georgia denied a change to the Georgia Rules of Professional Conduct proposed by the State Bar of Georgia and held that Georgia lawyers were prohibited "from counseling and assisting clients" in Georgia's newly legal medical cannabis industry.[1]
It may have been the right answer to a wrong question posed by the State Bar of Georgia, but the result has led to a confounding result for Georgia's lawyers and its citizens seeking access to medication made legal by its Legislature and governor.
Georgia lawyers find themselves walking that fine line, as the great Georgia singer-songwriter Michael Stipe of R.E.M. put so poignantly more than 30 years ago: "Oh no, I've said too much; I haven't said enough."[2]
Federal Law and Enforcement Policy
The federal Controlled Substances Act establishes five categories or classifications of regulated drugs, based on the drugs' potential for abuse, their accepted medical use and their treatment in international treaties.
Marijuana is listed as a Schedule I narcotic — the most dangerous category of narcotics under federal law. Manufacturing, distributing or dispensing marijuana is a violation of the CSA, as is conspiring with another to do so.
The CSA also makes it a crime to:
- "[K]nowingly open, lease, rent, use or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance"; and
- "[M]anage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance."
Aiding or abetting another to violate the CSA is itself a crime, as is knowingly assisting a violator after the fact.
Violations of the CSA can result in fines and imprisonment, and anyone who conspires to commit an offense under the CSA is subject to the same penalties prescribed for the offense itself.
The fines range from $1,000 to $2 million, and sentences range from less than a year to 10 years in confinement.
In addition to traditional and civil penalties, the government can seize any real property that "is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of" the CSA.
Despite this clear prohibition at the federal level, approximately 40 states have permitted the manufacture, distribution or sale of marijuana to some extent.
This open split between federal and state law has raised questions about which law controls the manufacture, distribution or sale of marijuana in states where those acts are permitted by state law.
As a general matter, federal law trumps conflicting state law. Specifically, in its 2005 Gonzales v. Raich decision, the U.S. Supreme Court upheld the federal government's authority to criminalize marijuana notwithstanding contrary state law.[3]
Georgia's Medical Cannabis Law
The Georgia Access to Medical Cannabis Commission describes the Georgia law as "much more limited than some other states."[4] The statute does little more than allow registered people to buy and possess low-THC oil from licensed dispensaries. This oil can contain CBD
and up to 5% THC by weight.[5]
Only a select number of licensed producers can grow the cannabis that will eventually be turned into the permitted low-THC oil. As in many other states, the application and licensing process is extremely competitive.
In order to obtain a registration card, prospective patients must have a qualifying condition or disease and be registered through their physician.
Once a patient has their card, they can buy low-THC oil and possess 20 fluid ounces or less, so long as they keep it in the manufacturer-labeled pharmaceutical packaging.
The Proposed Amendment to the Georgia Rules of Professional Conduct
In response to the new low-THC oil law and a request for an advisory opinion submitted by a Georgia attorney, the state bar proposed amending the Georgia Rules of Professional Conduct.
According to a 2021 report from the Georgia State Bar's Office of the General Counsel, the revision "would have allowed Georgia lawyers to counsel clients regarding conduct that is lawful under Georgia law but that may violate the law of another jurisdiction."[6]
The Response of the Georgia Supreme Court
The court recognized the desire of certain Georgia lawyers to participate in the state's new medical cannabis industry. The court noted at the outset, however, that the proposed amendment
is not limited to conduct related to low-THC oil; indeed, the proposed amendment is quite broad and might well apply to a wide range of conduct constituting a crime under federal law that simply has no corollary state criminal sanctions.
That point may have been the death knell, as the court concluded that the "passage of a Georgia statute purporting to permit and regulate conduct that constitutes federal crimes does not change" the long-standing prohibition against "counseling and assisting clients in the commission of criminal acts."
The Aftermath of the Decision
The court's strident refusal to allow an amendment of the Rules of Professional Conduct sent shock waves through the cannabis bar. After all, when faced with a similar question, nearly every state bar has permitted at least some role for attorneys to advise or assist clients engaged in state-legal marijuana acts.
Is there a federal constitutional right for a lawyer to advise and assist clients engaged in state-legal activity? While that's a worthwhile debate, we are not aware of any court of last resort reaching that conclusion.
In fact, the firmly accepted crime-fraud exception to the attorney-client privilege strongly suggests that such a right does not currently exist.[7] And we believe the Georgia Supreme Court is the venue most likely to break new ground to decide whether such a right exists.
Perhaps the answer lies in a close reading of the Georgia Supreme Court's opinion.
On the one hand, one can interpret it as a wholesale prohibition of Georgia lawyers advising and assisting clients from engaging in any act that violates federal law.
On the other hand, however, this does not explain the court's focus on the overbreadth of the proposed amendment — specifically, that the amendment "might well apply to a wide range of conduct constituting a crime under federal law."
If the proposed amendment was limited to allowing lawyers to advise and assist clients engaged in medical marijuana activities expressly permitted by Georgia law, the Georgia Supreme Court may have less concern about the broader implications of its ruling and may allow for such an amendment.
In our view, there is something perverse about allowing the creation of a state regulatory framework and then prohibiting citizens from obtaining legal counsel to defend their rights and interests within that very framework. Again, cannabis law presents numerous complicated legal issues for businesses and individuals that necessitate more, not less, counsel.
Whether Georgia will expand its current medical cannabis laws to allow for more licensees or different forms of cannabis is still an open question.
The most recent attempt by the state House of Representatives to expand the low-THC oil program ended when the latest bill stalled at the end of the legislative session.[8]
Although litigation brought by applicants who were denied licenses still clouds the program, the Georgia Supreme Court opinion at issue here should not necessarily be read as an indication that the court plans to strike down the law.
What this ultimately means for Georgia Bar members, though, is up to the bar itself. The State Disciplinary Board will decide whether Georgia lawyers advising clients should be disciplined.
Or, the board may decide that it will exercise prosecutorial discretion and dismiss complaints against lawyers who advise cannabis clients. After all, as noted on the state bar's website, it has the power to consider such advice "a technical violation that has not resulted in harm to clients."[9]
This type of workaround may be tolerable for the short term if the bar chooses that route, but Georgia lawyers and their clients would certainly prefer the certainty that comes along with a state supreme court's blessing.
Conclusion
The Georgia State Bar owes it to its members to help make this right, and the Georgia Supreme Court owes it to its constituents to access legal counsel regarding a product that the Georgia Legislature and governor have made legal.
As Patrick Henry advised in his famous "Give Me Liberty or Give Me Death" speech:
[I]n proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to ... our country.
Republished with permission. This article, "Ga. Needs To Resolve Cannabis Counsel Confusion," was published by Law360 on April 14, 2023.
[1] https://fingfx.thomsonreuters.com/gfx/legaldocs/yxmpjzbjnpr/Order_2021-3%20(Cannabis).pdf.
[2] https://www.youtube.com/watch?v=xwtdhWltSIg.
[3] https://supreme.justia.com/cases/federal/us/545/1/#tab-opinion-1961871.
[4] https://www.gmcc.ga.gov/faqs.
[6] https://www.gabar.org/barrules/ethicsandprofessionalism/upload/21_OGC_Report_web.pdf.
[7] The crime-fraud exception appears in both the ABA's Model Rules of Professional Conduct (which are widely followed and adopted by state bars to govern their lawyers) and commonly in case law dealing with attorney-client privilege. Model Rule 1.6(b)(2), dealing with confidentiality, allows lawyers to break confidentiality to prevent their client from committing certain crimes or frauds. And throughout the country, courts generally strike down attorney-client privilege where a lawyer's services are used to help a client commit a crime or fraud.
[9] https://www.gabar.org/forthepublic/disciplinaryprocess.cfm.
