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Oregon RPC 1.2(c) prevents a lawyer from counseling a client to engage in, or assisting a client in, conduct that the lawyer knows is illegal or fraudulent. It reads:

(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

In 2014, the OSB Legal Ethics Committee (LEC) recommended an exception to the RPCs be adopted to allow attorneys to advise clients regarding the then pending legalization of marijuana within Oregon. The exception adopted by the HOD and approved by the Oregon Supreme Court, RPC 1.2(d), states:

(d) Notwithstanding paragraph (c), a lawyer may counsel and assist a client regarding Oregon’s marijuana-related laws. In the event Oregon law conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy.

On June 13, 2022, the OSB Cannabis and Psychedelics Section Executive Committee requested the LEC review RPC 1.2(d) considering the changes to the law in relation to psilocybin. Specifically, the Oregon Psilocybin Services Act (OPSA) allows the Oregon Health Authority to establish a framework for the manufacture and administration of psilocybin. Psilocybin, like marijuana, is still a Schedule I substance in the federal Controlled Substances Act.

The LEC reviewed the request from the Cannabis and Psychedelics Section Executive Committee and noted that a broader exception may be necessary to prevent the LEC from revisiting the issue each time there is a conflict between federal and state law. Additionally, there is a new concern about conflicting state laws between states. Recent events have created long-arm statutes that criminalize advising and assisting clients with reproductive rights and gender-affirming care that is legal within Oregon, but illegal in other jurisdictions. These amendments to 1.2(d) provide confidence to attorneys that advising clients about proposed conduct that is legal in Oregon will not be considered unethical behavior.

The LEC recommends that RPC 1.2(d) also adjust the language to include conduct the “lawyer reasonabl believes is permitted under Oregon law.” The LEC decided to adopt a “reasonably believes” standard in order to allow the attorney to counsel the client based on the reasonable interpretation of the law at the juncture that the client is requesting advice. The option of “expressly permitted” was raised, but the concern was that a potential change in the judicial interpretation of a law could cause a violation of the Rule. A “reasonably believes” standard allows lawyers to provide legal advice based on the reasonable interpretation of the law at the present time without fear that a future judicial decision may subject them to a future ethical violation of the RPCs.

The LEC also recommends changing “shall” to “may.”  The LEC noted that the marijuana industry has matured, and business providers may seek advice from attorneys specializing in certain areas of the law not linked to criminal law or the Controlled Substances Act. Additionally, attorneys may not be adequately competent to discuss the conflict between the laws of other jurisdictions or the potential legal consequences.

The LEC recommended the preceding amendments to create a broader exception to provide attorneys with the ability to provide clients with competent legal assistance in the climate of conflicting laws. The OSB Board of Governors agrees with the LEC recommendations and urges the HOD approval.