2021-02 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 2021-02

Adoption Date: 2021

Rules: 4–1.1; 4–1.2; 4–1.4; 4–8.4, Preamble and Scope

Client-Lawyer Relationship
Maintaining the Integrity of the Profession

Competence
Scope of Representation
Communication
Misconduct

Subject: Misconduct - Criminal Act by Lawyer; Scope of Representation

Summary: medical marijuana

Question: May a lawyer represent individuals or businesses in conduct pursuant to Article XIV of the Missouri Constitution, entitled “Medical Cannabis,” which is also frequently referred to as medical marijuana?

Answer: Rule 4 dash–1.2(f) states: “[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.”

The Comments accompanying each Rule of Professional Conduct “are intended as guides to interpretation, but the text of each Rule is authoritative.” Scope [21].

Comment [8] to Rule 4 dash–1.2 states: “In counseling or assisting, if a state law conflicts with federal law, the lawyer should advise the client of that fact but cannot (1) undertake conduct that would violate federal law or (2) counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. See Rule 4 dash–1.1 and 4 dash–1.4.”

If a lawyer representing individuals or businesses in conduct pursuant to Article XIV of the Missouri Constitution, Medical Cannabis, would be in conflict with federal law, the lawyer should advise the client of that fact, but the lawyer cannot undertake conduct that would violate federal law or counsel or assist a client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. Whether such conduct would violate federal law is a question outside the Rules of Professional Conduct. Further, Rule 4 dash–8.4 (b) states 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.” Violation of federal law by a lawyer may rise to the level of misconduct under Rule 4 dash–8.4(b).

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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