NJ Lawyers Can (Ethically) Use And Invest In Cannabis

In a recent opinion, the New Jersey Supreme Court Advisory Committee on Professional Ethics ruled that attorneys may use cannabis and operate/invest in cannabis businesses. The Committee noted that this conduct “remains technically illegal under federal law,” but does not, “as a general matter,” violate the Rules of Professional Conduct.

The Committee analyzed the issue under RPC 8.4(b), which prohibits an attorney from committing a “[1] criminal act that [2] reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” The Committee briefly recounted the history of cannabis regulation, both in New Jersey and on the federal level. It observed that, while legal under New Jersey law, the production, sale, and use of cannabis is still a “criminal act” under federal law. So the question before the Committee was whether this criminal act “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.”

The Committee held that it does not. This did not appear be a terribly difficult decision for the Committee. Instead, it succinctly concluded that “conduct that fully complies with State law” does not reflect adversely on the lawyer’s character. Moreover, although “technically illegal” under federal law, the Justice Department has “publicly taken the position that it will not enforce the federal law [criminalizing cannabis] in certain situations.” Therefore, the Committee held that “lawyers, like other New Jersey residents, may engage in this conduct.”

But the Committee cautioned that cannabis, “like alcohol, prescription medications, and certain over-the-counter drugs, can affect a lawyer’s ability to provide competent representation of clients.” So a lawyer must be careful “not to use cannabis in a manner that would impair the lawyer in the provision of legal services.”

And, as it relates to owning or investing in cannabis businesses. the Committee reminded attorneys that they must (a) “strictly comply with Rule of Professional Conduct 1.8(a),” which prohibits a lawyer from entering “into a business transaction with a client or knowingly acquir[ing] an ownership, possessory, security or other pecuniary interest adverse to a client unless” certain conditions are met, and (b) be aware of potential conflicts of interest under RPC 1.7(a)(2) if they invest in a client’s business.

So can I call myself a Super Lawyer or not? Either way, can I still wear my cape?

By: Peter J. Gallagher (LinkedIn)

You know it’s “award season” – at least the legal world’s version of it – when your social media starts to fill up with posts that sound like this: “So honored to be included as one of the ‘Worlds Most Awesome Patent Lawyers’ with 43 other members of my firm.” The question for New Jersey lawyers is whether otherwise innocent humblebrags like this actually run afoul of our Rules of Professional Conduct. Somewhat surprisingly, most of these posts do.

Under RPC 7.1, lawyers cannot make false or misleading statements about their services. It used to be that any statements comparing one lawyer’s services to other lawyers’ services were deemed false and misleading. And since superlatives like “best,” “super,” “preeminent,” “distinguished,” “top,” “leading,” and “top-rated” are inherently comparative, this meant that no lawyer could advertise that they were included on a list of, for example, “New Jersey’s Best Lawyers.”

This changed about a decade ago when RPC 7.1 was amended to allow attorneys to advertise about winning comparative/superlative awards like this, but only if: “(i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernible manner: ‘No aspect of this advertisement has been approved by the Supreme Court of New Jersey.’”

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In California, a bee is a fish. (At least for purposes of California’s endangered species act.)

By: Peter J. Gallagher (LinkedIn)

In a recent decision, Almond Alliance of California v. Fish and Game Commission, a California court was asked to determine whether bumble bees fall within the definition of a “fish” in the California endangered species act. The issue arose when California attempted to classify four types of bumble bees as endangered species. Under California law, “fish” can be classified in this manner, so if the bees qualified as “fish” then they could be protected. Seems like an easy question to answer, right? But remember, this is California.

The court held that a bee is a “terrestrial invertebrate” and all invertebrates – not just ones that spend at least some of their time in the water – are included under the definition of “fish” in California’s endangered species act. Good news for bees; bad news for the English language.

In Almond Alliance, the court acknowledged that “[a] fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments.” But the California legislature defined “fish,” for purposes of its endangered species act, as a “wild fish, mollusk, crustacean, invertebrate, [or] amphibian.” According to the legislative history, this expanded definition would “permit closer control and monitoring of the harvest of species such as starfish, sea urchins, sponges, and worms,” and would allow the state to protect “amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” No mention of bees or insects anywhere in the definition or legislative history, but the court nonetheless held that a bee is “terrestrial invertebrate” and the definition of fish includes “invertebrate,” so a bee is a fish.

Of course, the court did not hold that a bee is a fish for all purposes. It just held that a bee satisfies the definition of “fish” in the California endangered species statute, so it can be protected. But still, it seems odd to acknowledge that a fish is, “of course,” “commonly understood” to mean an aquatic creature, then review legislative history that references full-time aquatic creatures like mollusks (snails, clams, squids) and crustaceans (crabs lobsters, shrimp) and part-time aquatic creatures (amphibians), only to then conclude that an insect that, as far as I know, avoids the water entirely, is a fish. I am all for reading the terms of a statute literally, but this seems a bit much for me.

“Once Upon a Time . . . in Legal Ethics and Social Media.”

By: Peter J. Gallagher (LinkedIn)

In a recent decision, the New Jersey Supreme Court looked back to a time before social media was ubiquitous, a time when Facebook was cutting edge and perhaps even – pause for collective gasp from anyone under 40 – cool.

The case – In the Matter of John Robertelli – involved an attorney who represented defendants in a personal injury case. He asked his paralegal to search the Internet for information about plaintiff. The paralegal did, first by searching plaintiff’s Facebook page — which was allegedly public for a time but later made private — and then by “friending” plaintiff. The paralegal obtained information from plaintiff’s Facebook page that could have been used to impeach plaintiff. In 2021, the question of whether this conduct violates RPC 4.2 – which prohibits attorneys from communicating with individuals represented by counsel – seems pretty straightforward. But the conduct in Robertelli took place in 2008, which made all the difference to the Supreme Court:

Our Rules of Professional Conduct (RPCs) generally prohibit a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent. RPC 4.2. That ethical prohibition applies to any form of communication with a represented party by the adversary lawyer or that lawyer’s surrogate, whether in person, by telephone or email, or through social media. Although it is fair game for the adversary lawyer to gather information from the public realm, such as information that a party exposes to the public online, it is not ethical for the lawyer — through a communication — to coax, cajole, or charm an adverse represented party into revealing what that person has chosen to keep private.
The issue in this attorney disciplinary case is the application of that seemingly clear ethical rule to a time, more than a decade ago, when the workings of a newly established social media platform — Facebook.com — were not widely known. In 2008, Facebook — then in its infancy — had recently expanded its online constituency from university and high school students to the general public. A Facebook user could post information on a profile page open to the general public or, by adjusting the privacy settings, post information in a private domain accessible only to the universe of the user’s “friends.”

The novelty of Facebook in 2008 – to both the bar at large and Robertelli – saved the attorney from potential ethical consequences. But the Supreme Court cautioned, attorneys can no longer “take refuge in the defense of ignorance” when it comes to social media.

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Words of Warning: “If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so.”

By: Peter J. Gallagher (LinkedIn)

From the Appellate Division comes another case that sounds more like a law school hypothetical than real life. Here is the scenario: A driver is pulled over for a traffic offense. Signs point to the driver being intoxicated, but the police don’t conduct a field sobriety test. Instead, the officers allow the driver to call a friend to drive him home. The driver’s friend arrives and assures the offices that he will take the driver and his car “safely to a residence” (note: whether the friend promised to take the driver “home” is not clear). Unfortunately, on the way to the “residence,” the drunk driver convinces his sober friend to let him drive again. The friend agrees and leaves the car. The driver takes control and later gets into a serious accident. The question is whether the friend can be civilly liable for the accident along with the drunk driver and others. The answer from Diaz v. Reynoso . . . maybe.

In Diaz, four friends – Reynoso, Dominguez, Gonzalez and Paredes – went to a rooftop party in Fort Lee and then an Argentinian restaurant in Englewood. Reynoso admitted to having at least two cocktails, a shot of tequila, and two beers at the restaurant. When they left the restaurant, the four friends split up – Reynoso left in his car with Gonzalez as a passenger, while Paredes left in his van with Dominguez as his passenger.

Shortly thereafter, police officers stopped Reynoso’s car after they observed it travelling the wrong way down a one-way street. After speaking with Reynoso , one of the officers asked Reynoso if he felt capable of driving. He said he did, but also offered to call someone to pick him up. The officer “responded that would be preferable.” The officers did not administer any field sobriety tests on the driver.

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