Lately, I traveled to Chicago to talk at a convention hosted by the American Bar Affiliation (“ABA”) titled From Regs to Riches: Navigating the Quickly Rising Fields of Hashish and Hemp Regulation. The Convention coated a broad vary of cannabis subjects together with the stress between state and federal regulation on marijuana, navigating the licensing and start-up processes in a state that has simply gone authorized, advising shoppers within the hemp and hemp-derived CBD house, mental property points, insurance coverage protection for marijuana companies, the burgeoning world marketplace for cannabis commerce, and moral points a marijuana lawyer should think about. As you in all probability guessed from that title, that final level goes to be the main target of this publish.

I spoke on a panel on the Convention, together with moderator Michael W. Drumke of Swanson, Martin & Bell and fellow panelists Alec Rothrock of Burns, Figa & Will and Steven Money of Day Pitney LLP.

Earlier than I get began, I need to present a disclaimer for the non-lawyer readers of the weblog. On this context, until in any other case famous, “Ethics” refers back to the guidelines {of professional} conduct that govern attorneys. Legal professionals are afforded a substantial amount of belief from shoppers, different attorneys, courts, and society as a complete. As such, we’ve got our personal set of Ethics to watch as a way to preserve our licenses to follow regulation. Every state governs its personal attorneys and every has its personal guidelines. For instance, these guidelines govern a lawyer’s conduct within the state of Washington. Although no two states Ethics are precisely alike, most states comply with the ABA’s Mannequin Guidelines of Skilled Conduct in drafting their very own guidelines.

Mannequin Rule 1.2(d) states the next:

A lawyer shall not counsel a consumer to interact, or help a consumer, in conduct that the lawyer is aware of is felony or fraudulent, however a lawyer might focus on the authorized penalties of any proposed course of conduct with a consumer and should counsel or help a consumer to make a very good religion effort to find out the validity, scope, which means or software of the regulation.

The manufacturing, processing, possession, transportation, and sale of marijuana is a violation of federal regulation beneath the Managed Substances Act (“CSA”). Many states have legalized both leisure or medical marijuana which conflicts with federal regulation. If a lawyer is working with a consumer who is working a state-legal marijuana enterprise, she is helping the consumer in conduct that she is aware of is felony beneath federal regulation. Strict compliance with Rule 1.2 would imply that no lawyer might work with a marijuana enterprise in states the place marijuana is authorized. That will be a ridiculous end result as it will deprive a complete business, one which it closely regulated and complicated, of authorized illustration.

In gentle of this, many states are including feedback to their model of Rule 1.2 to permit attorneys to work within the marijuana business. Should you’re a lawyer venturing into the marijuana business, be sure to perceive how your state bar offers with RPC 1.2 (d). Don’t assume that you simply’re “good to go” simply because voters legalized marijuana.

In Washington, our State Supreme Court docket, which regulates attorneys, added the next remark to Washington’s Rule 1.2:

[A] lawyer might counsel a consumer concerning Washington’s marijuana legal guidelines and should help a consumer in conduct that the lawyer moderately believes is permitted by these legal guidelines. If Washington regulation conflicts with federal or tribal regulation, the lawyer shall additionally advise the consumer concerning the associated federal or tribal regulation and coverage.

The Washington State Bar Affiliation additionally issued a non-binding opinion on whether or not attorneys should purchase marijuana, shopper marijuana and personal marijuana companies. Spoiler alert, the reply to all three questions is “sure,” with strings connected.

Does that remark change Rule 1.2? Nope. It simply supplies steering. Do the remark and steering from WSDA present even an ounce of safety for a lawyer who’s violating federal regulation by “aiding and abetting” marijuana shoppers? No means! Although at this level federal enforcement towards state-legal marijuana appears not possible, attorneys, like their shoppers, are taking a danger by working on this house. On the finish of the day, a marijuana lawyer wants to just accept this truth as a way to work on this subject.

For people who do make the leap, listed below are a number of suggestions that had been mentioned on the Ethics panel in Chicago:

  • Make it possible for your consumer understands that marijuana is unlawful beneath federal regulation and that nothing in state regulation modifications that. This disclaimer needs to be in each engagement letter that’s in any means associated to marijuana. Want an instance? Right here is the disclaimer that we use for this weblog (additionally conveniently positioned to the appropriate of this publish): “Please be conscious that possessing, utilizing, distributing and promoting marijuana are all federal crimes and that this weblog isn’t meant to offer you any authorized recommendation, a lot much less lead you to consider that marijuana is authorized beneath federal regulation.” Take into account that this disclaimer is for a weblog, not an engagement letter, however it states in plain English that marijuana stays unlawful beneath federal regulation. Nonetheless, don’t assume that one disclaimer is sufficient. Remind your consumer of the federal dangers early and sometimes.
  • Restrict the scope of your engagement to state regulation. For instance, if a consumer requests that you simply assist with some authorized points associated to her Washington-licensed marijuana develop you, ought to state that your agency will “present recommendation on the lawful cultivation of marijuana in Washington State.” With out that final bit “lawful cultivation” isn’t actually potential because of the CSA. Don’t assume that everybody who ever reads that engagement letter will know what you meant. Spell it out initially to keep away from ambiguity.
  • Should you stay in a state the place it’s authorized and Moral for a lawyer to eat marijuana, accomplish that responsibly. Legal professionals are statistically more likely to wrestle with substance abuse issues, compared to non-lawyers, as indicated in a latest report by the ABA Fee on Lawyer Help Applications revealed within the Journal of Habit Drugs. Marijuana has no place on Schedule I of the CSA, alongside heroin and ecstasy. Nonetheless, it may be abused and may negatively impression an lawyer’s follow. Should you do determine to eat marijuana, both for leisure or medical functions, just be sure you aren’t intoxicated whereas on the job as that would have devastating outcomes for each you and your consumer. Should you eat after hours, take note of how your physique reacts throughout working hours. Should you discover that you simply really feel groggy the morning after consuming, it’s possible you’ll need to solely partake on the weekends or, on the very least, keep away from consuming the night time earlier than your opening argument or that high-stakes negotiation. If you’re combating substance abuse or psychological well being points, you could find assets right here.

Marijuana legalization has include distinctive Moral challenges and I loved discussing a few of these points on the ABA’s Convention. As a ultimate word, the Convention was sponsored by the Tort Trial and Insurance coverage Follow Part of the ABA and our lawyer-readers who’re fascinated about becoming a member of this part, can discover extra data right here.