Following up on that follow up

I probably should have taken the opportunity to say so in my last post – by way of contrast if not context — but one very obvious reason that the Ohio Supreme Court was able to move so quickly to adopt a revision to its RPC 1.2(d) to address its medical marijuana situation for lawyers is that it isn’t the first U.S. jurisdiction to opt to tinker with the some aspect of that rule in response to the issue.

Vermont recently, but after a much longer period of contemplation, chose to address the issue not by changing the black letter of its rule, but by adding a new paragraph to its comment to RPC 1.2.  After the revision, which happened in August 2016, Vermont’s Comment to RPC 1.2 provides the following explanation:

[14]  With respect to paragraph (d), a lawyer may counsel a client regarding the validity, scope, and meaning of Title 18, chapters 84, 84A, and 86 of the Vermont Statutes Annotated, and may assist a client in conduct that the lawyer reasonably believes is permitted by these statutes and the rules, regulations, orders, and other state and local provisions implementing the statutes.  In these circumstances, the lawyer shall also advise the client regarding the potential consequences of the client’s conduct under related federal law and policy.

The structure of that paragraph ought to sound familiar because — other than the references being to the Vermont statute instead of the Ohio law — it reads pretty much the same as the language that Ohio grabbed for use in its new RPC 1.2(d)(2).

Ohio’s other change, the move from using the word “criminal” to the word “illegal” in RPC 1.2(d) is still puzzling.  I still haven’t stumbled upon a good answer to my question why the Ohio court did that and what it thinks the distinction there would be.

Vermont’s approach to this issue though raises a question of a different variety altogether: how close does a change like this come to running afoul of the principles in the rules themselves about the purpose of Comments to the black-letter rules?

In Vermont, as in most states that have a version patterned after the ABA Model rule, the explanation as to the role of comments appears in the “Scope” section of the Rules and is as follows:

The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule…. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

Given that the black-letter of the rule being modified in Vermont reads “”[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,” I do think Vermont’s addition of [14] to the Comment is an appropriate exercise in explaining and interpreting the black-letter of the rule rather than using the comment to change the meaning of the rule but can admit reasonable minds might disagree.

What I don’t think really anyone reasonable can disagree with is the sentiment offered in the “notes” offered in Vermont about this amendment:

Given the conflict between state and federal law, and DOJ’s current enforcement policy, this is an area in which advice from an attorney is critical and into which clients should not be forced to enter without counsel.  Similarly, lawyers should not face professional discipline for providing legal advice and legal assistance on such an important issue, especially when the alternative is to leave clients to proceed at their own peril.