Do Lawyers and Judges Have a Duty to Report another Lawyer’s—Especially an Employee’s—Use of Medical Marijuana?
On September 8, 2018, when Ohio residents with a prescription can legally purchase medical marijuana from state-licensed dispensaries, employers will face a host of new legal and practical issues. One question for employers who are also lawyers, and therefore bound by the ethical rules, will be:
“When do I have a duty to report another lawyer’s use of medical marijuana?”
Even an employee’s use of medically prescribed marijuana, which will now be legal in Ohio, is a misdemeanor under the federal Controlled Substances Act (CSA), assuming simple possession and no intent to distribute.
- Do I have a duty to report what is actually a federal crime?
Not under these circumstances: Under Ohio Revised Code Section 2921.22, a person can be found guilty of a range of misdemeanors for failure to report a felony, but it is not a crime to fail to report the commission of a misdemeanor to law enforcement authorities.
- Do I have a duty to report another lawyer’s use of medical marijuana as a violation of the ethical rules?
Both judges and lawyers have a duty to report when they have “knowledge that a lawyer has committed a violation of the Ohio Rules of Professional Conduct that raises a question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer….” Judicial Conduct Rule 2.15(B) (emphasis in the original); see also Professional Conduct Rule 8.3(a). Knowledge is defined within the rules to mean actual knowledge of the fact in question, which may be inferred from the surrounding circumstances.
Although the Ohio Supreme Court and Board of Professional Conduct have not addressed the specific question of when a judge or lawyer must report another lawyer’s usage of medical marijuana, the Board has provided some guidance on how medical marijuana usage reflects on a lawyer’s honesty and trustworthiness. Ohio Advisory Opinion 2016-06 addressed a lawyer’s personal use of medical marijuana. After noting that under current federal law, an Ohio lawyer’s use of medical marijuana—even with a prescription—constitutes an “illegal act” implicating Prof. Cond. R. 8.4(b) and Prof. Cond. R. 8.4(h), the Board recognized that not every “illegal act” reflects adversely on a lawyer’s honesty and trustworthiness:
Whether the illegal act “reflects adversely on the lawyer’s honesty or trustworthiness” under Prof. Cond. R. 8.4(b) only can be determined on a case-by-case basis. A lawyer is “answerable to the entire criminal law,” but is only “professionally answerable” to those offenses that demonstrate a lack of honesty or trustworthiness (Prof. Cond. R. 8.4(b), cmt. [2]). For example, a single violation of the CSA by a lawyer using medical marijuana would not, by itself, demonstrate the requisite lack of honesty or trustworthiness to constitute a violation of Prof. Cond. R. 8.4(b). Other misconduct related to the illegal act, such as lying to federal investigators or obtaining a prescription for medical marijuana for purposes of resale or providing it to a minor, would need to be present to trigger a violation of Prof. Cond. R. 8.4(b). A nexus must be established between the commission of an illegal act and the lawyer’s lack of honesty or trustworthiness. Colo. Adv. Op. 124 (2012). Similarly, multiple violations of federal law would likely constitute “a pattern of repeated offenses” indicating an “indifference to legal obligations” and constitute a violation of the rule (Prof. Cond. R. 8.4(b), cmt. [3]). See Stark County Bar Ass’n v. Zimmer, 135 Ohio St. 3d 462, 2013-Ohio-1962 (respondent’s multiple driving infractions constituted a violation of Prof. Cond. R. 8.4(b)).
The statement that “multiple violations of federal law would likely constitute a pattern of repeated offenses” is difficult to square with the legal prescription of marijuana to treat a medical condition. It is unlikely that there would be a single use prescription of medical marijuana. Most often it would be prescribed to treat an ongoing condition and would be used on a repeated basis. There is a strong argument that using marijuana as prescribed on a repeated basis is not a pattern of conduct, but rather a single instance of conduct – using medication as prescribed.
Advisory opinions are not binding on the Ohio Supreme Court. There will not be a clear answer to the question of whether repeated, as prescribed, use of medical marijuana constitutes a breach of the Ohio Rules of Professional Conduct until the Court addresses the issue. In our opinion, it is unlikely that repeated, prescribed, use, without other related acts (resale, or provision to a minor, etc.) will be found to be a violation of the ethics rules.
So, whether the involved lawyer is one of your employees or a colleague, the best course is to evaluate each situation as it arises, preferably with the assistance of counsel. Unless you have actual knowledge of a lawyer’s use of medical marijuana and you believe such use raises questions about his or her fitness as a lawyer, you have no duty to report the use to a disciplinary authority.
Top image: The State Capitol in neighboring Pennsylvania lit to celebrate passing of medical marijuana legislation in the House in March 2016. Image by the Office of Governor Tom Wolf, CC BY 2.0.