Editor's note: This article first appeared in New Jersey Lawyer, the NJSBA's award-winning bi-monthly magazine. To check out the magazine archives visit here.
By Louis J. Keleher, Esq.
Law Offices of Peter W. Till
As New Jersey’s legalization of marijuana seems imminent, attorneys must be aware of the consequences of taking advantage of this looming liberty, at least until the law is changed at the federal level, where marijuana usage still remains illegal. States that have already legalized marijuana for personal and medical use seem to be split on the issue of marijuana use by attorneys. That said, it is clear their analysis invokes New Jersey RPC 8.4(b), “Misconduct,” which provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.”
Because it is unclear how the New Jersey bar may regulate attorneys who choose to use marijuana recreationally, it would ordinarily be instructive to examine how states that have legalized marijuana have addressed this issue. However, there is currently too little information and too little precedent for this analysis to prove meaningfully informative. For example, in Colorado, the Colorado Bar Association Ethics Committee Formal Opinion 124 (2012) examined whether a lawyer could personally use marijuana for medical purposes without violating Colorado RPC 8.4(b). The opinion, which was issued prior to the legalization of recreational marijuana in the state in 2014, concluded that attorneys could “cultivate, possess, and use small amounts of marijuana solely to treat a debilitating medical condition.” Since its legalization in Colorado for personal use, there has been no further guidance on an attorney’s use of marijuana for that purpose.
Notably, Opinion 2016-6, issued by the Supreme Court of Ohio, where marijuana is not yet legal but can be consumed medicinally, rejected even medical use by attorneys, stating: “a lawyer’s personal use of medical marijuana pursuant to a regulated prescription […] subjects the lawyer to possible federal prosecution, and may adversely reflect on a lawyer’s honesty, trustworthiness and overall fitness to practice law[,]” which may potentially violate Ohio RPC 8.4(b) and (h), pg. 1-7.
These two conclusions nonetheless draw out the disparity in application of the law and ethics rules while the state and federal statutes are at odds: A state that recognizes marijuana usage as legal on its books operates inconsistently if it treats attorneys who consume it as committing a criminal act. Though, the state must also balance its recognition of marijuana’s legal status with the possibility of federal consequences for using marijuana when enforcing the rules of ethics. As long as federal law renders marijuana consumption illegal, there will be continued confusion about how to reconcile the two laws with each other and with Rule 8.4.
Thus, any attorney interested in consuming marijuana upon New Jersey’s seemingly forthcoming legalization of the substance must appreciate the consequences that may follow from their apparent legal use of it. Although much is still unclear with regard to New Jersey’s decision to legalize marijuana, the federal laws remain in direct contravention with the laws of those states that have legalized. Thus, the current state of the law, nationally, presents an ethical dilemma New Jersey attorneys will have to grapple with if they foray into the realm of marijuana use.