Opinion 18-163
December 11, 2018
Digest: A part-time lawyer judge may provide legal services to a New York State-approved medical marijuana corporation.
Rules: 10 NYCRR pt 1004; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.6(B)(2); 100.6(B)(4); 100.5(A)(1); Opinion 10-54; NY St Bar Assn Comm on Prof Ethics Op 1024 (2014).
Opinion:
A part-time lawyer judge, with a background in regulatory matters, federal law enforcement and litigation, asks if he/she may accept employment as an attorney for a New York State-approved medical marijuana corporation. The judge would review regulatory compliance, interpret legal requirements and restrictions, and supervise outside counsel’s work on any litigation. Further, the judge may be asked to represent the company before state regulators or legislators to address issues of compliance and/or recommendations for new legislation. As the judge notes, however, while New York and 29 other states currently allow some form of marijuana use, it remains unlawful on the federal level.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Judges must “respect and comply with the law” (22 NYCRR 100.2[A]) and “be faithful to the law” (22 NYCRR 100.3[B][1]), and they must not lend the prestige of judicial office to advance any private interest (see 22 NYCRR 100.2[C]). A part-time lawyer judge may practice law, subject to certain limitations (see e.g. 22 NYCRR 100.6[B][2]), and may accept private employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). A judge must not engage directly or indirectly in political activities, unless an exception applies (see 22 NYCRR 100.5[A][1]).
We have said a part-time lawyer judge may accept employment with a law firm to appear before the state legislature, the state executive branch, and local governments on behalf of various clients, subject to certain limitations (see Opinion 10-54). For example, we advised (id. [citations and paragraph break omitted]):
Certainly, a part-time lawyer judge who practices law may prepare legal memoranda on issues and legislation affecting his/her clients. In addition, a part-time judge may appear at a public hearing before an executive or legislative body or official and may meet privately with legislators or members of the executive branch to advocate on his/her clients’ behalf. However, … even on behalf of his/her clients, he/she may not engage in prohibited political activities. Therefore, the judge may not engage in any partisan political activity; may not attend political gatherings; may not make political contributions; or purchase tickets for politically sponsored dinners or other functions, including any such function for a non-political purpose.
The current geographically limited or “patchwork” legalization of marijuana is not unprecedented; for example, gambling has a similar past.1 In July 2014, the governor signed into law the Compassionate Care Act, permitting the use of marijuana for legitimate medical purposes in New York. While the current state/federal divide on legalization of marijuana may require attorneys to tread carefully, we note that the New York State Bar Association has advised that the Rules of Professional Conduct “permit a lawyer to assist a client in conduct designed to comply with state medical marijuana law, notwithstanding that federal narcotics law prohibits the delivery, sale, possession and use of marijuana and makes no exception for medical marijuana” (NY St Bar Assn Comm on Prof Ethics Op 1024 [2014]).2
As noted in Opinion 10-54, part-time lawyer judges are permitted wide latitude in their legal practice as long as they adhere to the Rules Governing Judicial Conduct. Thus, for example, the judge must not practice law in the court on which he/she serves, or before any part-time judge in his/her county who is permitted to practice law (see 22 NYCRR 100.6[B][2]). Clearly, this restriction does not prohibit him/her from appearing in federal court or before regulatory bodies if needed for the contemplated representation. While recreational use of marijuana remains prohibited in New York, medical use is now strictly regulated by the state (see 10 NYCRR pt 1004). We do not believe the Rules Governing Judicial Conduct bar this part-time lawyer judge from legal advocacy on behalf of clients who are engaged on behalf of what our state deems a legal and legitimate medical enterprise.
While judges must “respect and comply with the law” (22 NYCRR 100.2[A]) and “be faithful to the law” (22 NYCRR 100.3[B][1]), this judge is not proposing to engage in any activity that is illegal under federal law or to counsel a client on escaping detection for an ongoing criminal enterprise. Rather, the judge’s focus as a lawyer will presumably be to advise his/her client, a licensed and regulated entity, on how best to comply with the state’s regulatory scheme.
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1 In July 1993, the first Indian gaming casino opened on the Oneida nation’s territory. In 2013, New York State voters approved a constitutional amendment permitting “Las Vegas” style casinos in the state.
2 Among the “unusual circumstances” underlying its opinion, the bar association noted “the U.S. Department of Justice has adopted and published formal guidance restricting federal enforcement of the federal marijuana prohibition when individuals and entities act in accordance with state regulation of medical marijuana” (NY St Bar Assn Comm on Prof Ethics Op 1024 ¶¶ 1-3 [2014]).