Lawyers fear being arrested for simply representing legal cannabis businesses


For legal professionals, the cannabis industry is a superb equalizer. Thanks to the legalization of marijuana (in some form or type) throughout 29 states and D.C.—and notably the current wave of legalization for leisure marijuana—the cannabis industry has emerged as a singular nook of the legal world the place new and skilled legal professionals alike have equal footing.  This presents a definite alternative for fresh-out-of-law-school varieties trying to get their foot within the door and create a reputation for themselves.

But conflicting state and federal marijuana legal guidelines have additionally created an environment of confusion for legal professionals, lots of whom now fear that representing a cannabis enterprise might land them in legal hassle.

Lawyers representing cannabis businesses are left questioning: am I breaking the regulation?

This legal gray space is nothing new for the cannabis industry. Operating a cannabis enterprise in a marijuana-friendly state nonetheless will depend on the tacit consent of the federal authorities’s judicial department, thus-far enshrined by the Rohrabacher-Blumenauer modification (a.okay.a. Rohrabacher-Farr modification). But the federal authorities’s determination to not goal cannabis businesses in states with legal marijuana legal guidelines stays capricious, notably given Attorney General Jeff Sessions’ well-known disdain for the legalization of marijuana.

As a end result, states with legal marijuana legal guidelines have conflicting opinions about whether or not legal professionals can advise shoppers within the marijuana industry with out violating guidelines of professional conduct.

The state Board of Professional Conduct in Ohio, for instance, lately warned legal professionals that advising shoppers to take actions that break federal regulation, even when permitted underneath state regulation, is technically a breach of professional conduct.

As ABA Journal stories, the Board’s ruling discovered that, “Unless and until federal law is amended to authorize the use, production, and distribution of medical marijuana, a lawyer only may advise a client as to the legality of conduct either permitted under state law or prohibited under federal law and explain the scope and application of state and federal law to the client’s proposed conduct.” Basically, legal professionals can’t advise cannabis businesses on which actions to take, solely on the legality of those actions as they pertain to state and federal regulation. This would require legal professionals to interact in semantic gymnastics, forcing their shoppers to continually learn between the strains of their recommendation, and making a tense line of communication between legal professionals and shoppers.

GettyImages 681515088 Lawyers fear being arrested for simply representing legal cannabis businesses
Photo by Jonathan Wiggs/The Boston Globe by way of Getty Images

The New Mexico State Bar Association has taken an identical strategy to Ohio, warning legal professionals that working for shoppers within the medical marijuana industry may violate the state’s guidelines of professional conduct—regardless that medical marijuana was legalized in 2007—as a consequence of federal drug prohibition. 

In California, a San Diego lawyer, Jessica McElfresh, bumped into this drawback when she was charged for being an adjunct to a criminal offense in her illustration of a licensed cannabis enterprise, on account of an e-mail she despatched to her shopper in 2015. McElfresh and her shopper each consider the e-mail was taken out of context, and the case has elicited fierce and widespread criticism for its prosecutorial overreach.

By and enormous, nevertheless, legal professionals and state courts alike appear to be turning a blind eye to those technical violations of professional conduct guidelines. Save for McElfresh, the overwhelming majority of legal professionals advising shoppers working within the legal marijuana industry haven’t skilled main legal backlash.

Some states have even explicitly sided with cannabis businesses and their respective legal professionals on this problem. The State Bar associations of Arizona and Illinois, for instance, have decided that legal professionals working within the legal medical marijuana area ought to be granted the identical privileges as legal professionals working for shoppers in non-marijuana associated industries.

Unfortunately, these conflicting opinions between states and basic legal confusion have turn into hallmarks of the nascent cannabis industry. For legal professionals working on this industry-wide gray space, the query is much less about legality and extra about every state’s prosecutorial agenda. So whereas the cannabis industry has introduced a singular alternative for legal professionals and cannabis entrepreneurs alike, for now, it additionally comes with a worth: uncertainty.   


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