When Ray Charles sang “Let’s Go Get Stoned,” he wasn’t exactly crooning to New Jersey’s lawyers, but now, well, they can if they want to (but not at work). The Advisory Committee on Professional Ethics, recognizing the reality of state legalization of marijuana, recently decided in Opinion 744 that lawyers may use regulated cannabis—and operate or invest in regulated cannabis businesses—without violating ethical rules.
The opinion reflects an almost ethereal debate about whether the federal prohibitions against marijuana should guide ethical policy, an argument which was soundly rejected by the committee, which recognized that the federal law is not being enforced. Ironically, just a few days later, President Biden pardoned all who have been convicted of simple possession on the federal level and ordered a review as to whether marijuana should be considered a Schedule I drug along with heroin, cocaine and LSD.
It’s not as if many or most attorneys (especially of a certain age) hadn’t used or at least tried marijuana, as it’s almost ubiquitous in our culture, but lawyers are humans too, and with the opinion are now free to “enjoy” the substance much as they can enjoy an alcoholic beverage at a bar function. (As it stands, the law allows police to use cannabis when off duty, although the Legislature is considering limiting any use by law enforcement). The opinion said the matter comes down to whether using something legal in the state, but which violates federal controlled substances law “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as lawyers in other respects,” (which is the vague, overbroad and indiscriminate language set forth in RPC 8.4b). The committee’s conclusion—recognizing that without the guidance of Opinion 744, attorneys would be left to guess whether marijuana use violates the RPC—was a rather emphatic “no.”