Pennsylvania Could Enact Medical Marijuana Legislation In 2015

On January 26, 2015, in a bipartisan effort, Pennsylvania senators Mike Folmer (R) and Daylin Leach (D) reintroduced to the General Assembly of Pennsylvania a bill (Senate Bill No. 3) providing for the medical use of cannabis in the Commonwealth of Pennsylvania.   Senate Bill No. 3 comprises  a comprehensive set of regulations that include (1) licensing and administrative procedures for growers, processors, dispensers, patients and health care professionals; (2) enforcement and penalties; and (3) fees and surcharges.

Recent comments by Pennsylvania’s newly inaugurated Governor, Tom Wolf, and last year’s passage by the PA Senate of a similar bill (Senate Bill No. 1182) by a 43-7 vote, suggest that Pennsylvania may be one of the states (the recent trend suggests there will be others) that enacts Medical Marijuana legislation in 2015.  As Governor Wolf stated on the same day that Senate Bill No. 3 was introduced, “I commend the bipartisan effort to allow Pennsylvania doctors to prescribe medical marijuana… We should not deny a physician’s ability to recommend medical marijuana treatment for Pennsylvanians suffering from seizures, those affected by PTSD, cancer patients affected by chemotherapy, and Pennsylvanians suffering from many other ailments and conditions that could benefit from this effective, doctor-prescribed treatment.”

As my partner Phil Lebowitz and I previously wrote, until the federal government removes marijuana from the Controlled Substances Act, 21 U.S.C. Section 811 et. seq., Pennsylvania lawyers interested in providing advice to the growers, processors, dispensers, patients, health care professionals, and investors, among others, who will participate in Pennsylvania’s medical marijuana industry upon enactment, will face an ethical dilemma because any such advice may violate Model Rule of Professional Conduct 1.2(d), which prohibits a lawyer from assisting a client “in conduct the lawyer knows is criminal.”

Given that changes to the CSA may not occur in 2015, and given the potential for enactment of Senate Bill No. 3 this year, the Pennsylvania Bar should follow the lead of a number of other states that have enacted medical marijuana legislation – Arizona, Colorado, Connecticut, Illinois, Maine and Nevada – and issue an ethics opinion that will assist Pennsylvania lawyers in providing advice regarding medical marijuana without running afoul of the rules of ethics.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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