Formal Opinion No. 49 set forth by the Hon. Clifford L. Nakea (Ret.) may have dashed hopes of businesses and business lawyers throughout the state when the Disciplinary Board of the Hawai'i Supreme Court opined on August 27th that lawyers could advise clients with respect to Act 241, but a lawyer cannot "provide legal services or facilitate and manage the operation of a medical marijuana business" when pot remains illegal under federal law.
Under Rule 1.2(d) of the Hawai'i Rules of Professional Conduct, "a lawyer shall not counsel a client to engage or assist a client in conduct the lawyer to aid or assist in conduct the lawyer knows is criminal or fraudulent" but a lawyer can advise with respect the legal consequences of such action.
This is bad news for enterprising Hawaii lawyers and medical marijuana purveyors. There may be not group in more dire need of legal services than marijuana dispensaries. The state law itself is rife with conflicts, each state varying the access to buying marijuana. Moreover, medical dispensaries are in dire need of tax advice given not only of their designation as criminal activity, but also the labrythine workings of the tax code.
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