“It’s easier to ask for forgiveness rather than permission.”
Those words, or words of similar effect, make up a pretty widely recognized adage. Depending on the details of any situation, the adage can serve as a proxy for pretty decent advice for a lawyer to give a client, but often less so if the lawyer’s client is also a lawyer. The message itself, however, can be a pretty decent mantra to offer to lawyers who might be contemplating posing a question to a regulatory body that issues advisory ethics opinions.
I’ve previously written a few words on my love/hate relationship with ethics opinions issued by entities. A lot of the time I find myself surprised that a lawyer would ask the question that a regulatory body says has been posed to it. Occasionally, I am very glad that some lawyer did because the result is a helpful opinion that I and others can point to as guidance when advising other lawyers or can rely upon as arguably persuasive authority in one context or another. Some times I really wish the question had never been asked because the opinion that gets produced really screws up the answer.
From time-to-time, I read an ethics opinion and reach a conclusion that the lawyer would have been better off just doing the thing and seeking forgiveness later rather than even asking the question. Hello Opinion 2016-6 from the Board of Professional Conduct of the Supreme Court of Ohio. It tackles the role lawyers in Ohio can or cannot play in that state with respect to the legalization of medical marijuana which is set to take effect next month in Ohio.
It has been more than a year ago now, but I wrote one time in the past about the thorny issues that can arise for lawyers from the growing trend at the state and local level of moving toward the legalization of marijuana while it continues to be illegal to grow, distribute, or use under federal law. Thus, I can’t really take too much issue with the opinion writers who issued the Ohio opinion because I recognize the constraints they consider themselves to be laboring under to some extent, but the work product they have spun out is still unfortunate… if for no other reason than that it is counterproductive.
People trying to operate in this new business sphere in Ohio will have many land mines to navigate and desperately need lawyers to help. They are going to do a whole lot better at avoiding unexpected difficulties or legal missteps if they have lawyers assisting them along the way. By telling Ohio lawyers that this kind of work is off-limits, other people who are not constrained by lawyer regulatory issues will likely step in to fill the void. Though I learned this morning from Karen Rubin over at her firm’s top-notch blog that the Ohio Supreme Court has already announced an effort to revise RPC 1.2 to address this issue, so maybe there will never be a gap created.
But the real problem here is that this is exactly the kind of question that should never have been posed this to the Board of Professional Conduct. Perhaps there is no better way of showing why this is true than in highlighting how the Ohio Board addressed the fact that the Ohio legislature passed a statute immunizing professionals from liability for undertaking actions in compliance with Ohio state law on medical marijuana. The Ohio Board offers no solace on that front:
The law immunizes professional license holders, including lawyers, from any professional disciplinary action for engaging in professional or occupational activities related to medical marijuana. Notwithstanding this provision, this advisory opinion analyzes the questions presented in light of rules promulgated by the Supreme Court pursuant to Oh. Const. Art. IV, Section 2(B)(1)(g).
The Board dropped a footnote from that second sentence to quote the relevant provision — “The supreme court shall have original jurisdiction in * * * [a]dmission to the practice of law, the discipline of persons so admitted, and all other matters related to the practice of law.” — and raise the specter for a lawyer interested in helping a medical marijuana business of an intercine war between government branches with his/her license trapped in the middle.
The clearest lesson here for Ohio lawyers ought to be that when you really want helpful, practical, legal and ethical advice about a tough question, you ought to hire someone in Ohio — someone like Karen or like many of the other very good lawyers licensed in Ohio who are members of APRL for example. Those folks could give them candid advice about the risks of their proposed endeavor and offer advice informed by comprehensive knowledge of the Ohio ethics rules but also advice informed by knowledge of other aspects of the law as well. I suspect good Ohio ethics lawyers would have told them some version of the following — yes, you might get in trouble if someone ever makes an issue out of it, but not entirely clear that you would get punished given the lay of the land, if you did it would probably be relatively minor, but it isn’t an area that anyone can give you a clear blessing in advance.
That kind of practical advice is something that a body like the Ohio Board simply isn’t in a position to give. As a result, you get Ohio Opinion 2016-6. And, the analysis in Ohio Opinion 2016-6 seems all the more frustrating when just a few days later a federal appeals court ruled that the Department of Justice could never actually prosecute someone who was fully complying with a state’s medical marijuana laws because of a funding bill restriction passed by Congress. You can read about that opinion here.