WV: Supreme Court Now Seeking Comment On Medical Cannabis Act

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The West Virginia Supreme Court of Appeals is seeking comments from the public on a proposed rule change involving the state’s Medical Cannabis Act, according to a press release from the state’s highest court.

The court is considering an amendment to Rule 1.2 of the Rules of Professional Conduct for attorneys. According to the order entered at a regular term of the Supreme Court of Appeals, Rule 1.2 involves the “scope of representation and allocation of authority between client and lawyer.”

Charles M. Johnson with the Frost, Brown Todd law firm, which has offices in West Virginia, Indiana, Kentucky, Ohio, Pennsylvania, Tennessee, Texas and Virginia, submitted a proposal to the court to consider and adopt a rule change to Rule 1.2 to address the “dilemma faced by West Virginia attorneys who are requested to counsel clients seeking to obtain licenses or to otherwise participate in the programs authorized by the West Virginia Cannabis Act.”

In his proposal, Johnson said in 2016, the Ohio Supreme Court amended the Ohio Rules of Professional Conduct to allow lawyers to provide legal services on behalf of clients engaged in Ohio’s medical marijuana programs.

“I believe the Ohio change to its Rule 1.2(d) is clear and concise,” Johnson said in the proposal. “Accordingly, I propose a similar change to the Rules of Professional Conduct in West Virginia.”

Johnson said many other states that have adopted medical marijuana laws also made changes to their rules of professional conduct to “authorize lawyers in these states to represent these types of clients, recognizing the important role that attorneys play in counseling clients to comply with these laws.”

The proposed addition to the rule, according to the order, is “a lawyer may counsel or assist a client regarding conduct expressly permitted under Senate Bill 386, the West Virginia Medical Cannabis Act, authorizing the use of marijuana for medical purposes and any state rules, regulations, orders, policies and procedures implementing the aforesaid act, as amended. In these circumstances, the lawyer shall advise the client regarding related federal law.”

The Medical Cannabis Act went into effect on July 5, 2017 under the guidance of the West Virginia Office of Medical Cannabis and organized under the West Virginia Bureau of Public Health.

According to the proposal, to receive medical cannabis, one must have a severe and debilitating condition certified by a participating physician. The patient must be under the care of that physician. In addition, the physician must attest that no other treatments have worked, and the patient will receive medical benefits from the cannabis.

There are 18 serious medical conditions that qualify. Some of those include cancer, HIV, Parkinson’s, Multiple Sclerosis, epilepsy, Huntington’s disease, Crohn’s disease, post- traumatic stress disorder, intractable seizures and sickle cell anemia, according to the West Virginia Department of Health and Human Resources.

The Medical Cannabis Act established permits, licenses or certificates for growers, processors, displeasures, registered physicians, caregivers and eligible clients to authorize their participation under state law, as stated in the proposal.

“It remains illegal under the Controlled Substances Act to manufacture, distribute or dispense marijuana,” Johnson said.

Johnson hopes the West Virginia Supreme Court of Appeals will consider the proposed rule change, “mainly to allow citizens of the state of West Virginia that choose to participate in the Medical Cannabis Act to obtain counsel from West Virginia licensed attorneys in an ethical dilemma regarding compliance with the Rules of Professional Conduct.”

Comments must be filed in writing with the clerk of the court by Feb. 16, according to the order filed in the West Virginia Supreme Court. Email comments are not encouraged and receipt of emailed comments will not be acknowledged, according to the West Virginia Judiciary website.

The Clerk of the Court’s address is Edythe Nash Gaiser, Clerk of the Court–West Virginia Supreme Court of Appeals–State Capital Room E-317–1900 Kanawha Boulevard East, Charleston, WV 25305.