Medical Marijuana Finds Unusual Suspects In Legal Limbo, The Lawyers

Mar 30, 2017
Originally published on February 28, 2017 9:27 am

Erika Gee is on the government relations and regulatory team at the law firm of Wright Lindsey Jennings, and she's taken clients who wish to procure licenses for medical marijuana dispensaries or cultivation facilities, a five- to seven-figure outlay before a single seed is planted or bud is sold. 

Andrew King is on the Cannabis Engagement Committee at another big firm, Kutak Rock, and he absolutely will not. King has written about why for Arkansas Lawyer. 

Each state's bar has a code or ethics or rules for professional conduct, and Arkansas's is formed by the state's judiciary. Rule 1.2(d) states "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent," and medical marijuana, approved by popular vote Nov. 8 and proceeding, is still illegal under federal law.

Ever since, the state has been gearing up for the big rollout of million-dollar dispensary operations and farmers with fields of pot. Previously, either one of those would have drawn the attention of Eastern District federal prosecutor Chris Thyer, but state law does come to bear, even on federal prosecutors, says assistant U.S. Attorney Chris Givens.

"The existing guidance out there ... indicates that while the federal drug laws are still in effect, that the priority of our enforcement and prosecution should not be directed toward the people who are unambiguously complying with state laws. That’s what’s in effect right now. The ... U.S. Attorney's Office should not be targeting people who are in serious illness or their caregivers, but rather, [the directives] gave us a series of people and activity that we should be targeting, such as, operations directing marijuana to minors or diverting legal marijuana to states where it is illegal, organizations that are giving money to cartels and that nature — that’s who our priorities are on right now."

Last week, prompted by Little Rock journalist and host Roby Brock, White House Press Secretary Sean Spicer said at this moment the administration has not elevated the urgency of prosecuting medical marijuana from where the previous Democratic administration put it.

"Medical marijuana I've said before that the president understands the pain and suffering that many people go through who are facing especially terminal diseases, and the comfort that some of these drugs such as medical marijuana can bring to them."

Medical Marijuana is legal in more than half the states in the country, and recreational, also called "adult use," marijuana is legal in another eight.

To date, federal prosecutors have been guided by memoranda from the justice department making prosecution of marijuana operations that are complying with voter-approved state laws and programs a non-priority. But whether prosecutions take place or not, marijuana commerce is illegal under federal law, and King says that presents an issue for the state's lawyers, if they're to comply with rule 1.2(d).

"A lot of other states who have been in this area much longer than Arkansas have addressed that issue," says Gee. "Many of them have modified their model rules of professional conduct to clarify the fact that you are advising your client under something that is legal under state law."

But both King and Gee agree that it's unwise to guess at what the Supreme Court will decide. Last week, the Court issued a per curiam order sending the question to its Professional Rules Committee.

King hopes they'll amend the rule to allow for counsel. Sure, lawyers want a part of what's estimated to be a $20 to $40 billion business in the state, but he also says a new regulatory complex that bars professional counselors is fraught.

"And if you’re trying to give something this sheen of legitimacy, preventing [businesses] from having lawyers is not the way to help them comply with this regulatory scheme that you’re setting up."

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