Amendments to Rule 1.2 Allow A Lawyer to Advise Someone in the Medical Marijuana Business

Can a lawyer advise someone in the medical marijuana business? In Illinois the lawyer can do this even though federal law prohibits the sale of marijuana. The key language is in Section (d)(3). Subsection (3) is an exception to the rule that a lawyer cannot counsel a client to engage in conduct that is criminal or fraudulent.

RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
     
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
     
(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
     
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
    
(d) 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
     
(1) discuss the legal consequences of any proposed course of conduct with a client,
     
(2) and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law, and
     
(3) counsel or assist a client in conduct expressly permitted by Illinois law that may violate or conflict with federal or other law, as long as the lawyer advises the client about that federal or other law and its potential consequences.
     
(e) After accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer’s firm the responsibility for performing or completing that employment, without the client’s informed consent.”

Edward X. Clinton, Jr.

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