Do attorneys who use cannabis legally nonetheless risk violating the Rules of Professional Ethics?

Last night, just as I finished revising my Expert Analysis submission on workplace drug testing to Law360, another new Law360 article on cannabis use caught my eye.

Whether by industry regulation or perhaps in an employee handbook, rules of ethics govern many workplaces. Rules of Professional Conduct govern the practice of law. As more states legalize the recreational use of cannabis, one question is whether lawyers, consistent with the rules of professional conduct, may use regulated cannabis.

The Law360 article I read noted that New Jersey’s Advisory Committee on Professional Ethics had just weighed in on this issue.

RPC 8.4 prohibits an attorney from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

In 2021, the Garden State legalized the adult use of recreational cannabis. However, cannabis is still a Schedule One illegal drug under federal law. This dichotomy was not lost on the Committee. They called it “highly unusual.”

But the Committee also noted that “there is no practical enforcement [by the federal government] against individual medical or recreational use that is permitted under State law.” So, under these circumstances, the Committee concluded that “lawyers’ conduct that fully complies with State law does not ‘reflect adversely on the layer’s honesty, trustworthiness or fitness as a lawyer in other respects’ and does not violate Rule of Professional Conduct 8.4.”

So, NJ lawyers can use cannabis as long as it does not impair the provision of legal services, materially limit an attorney’s representation of a client, or impede the ability to provide independent judgment and render candid advice.

But, in the unlikely event that the feds start prosecuting again, the Committee may revisit its decision.

Until then, if you partake in recreational cannabis in New Jersey, please do so responsibly.

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