Illinois Marijuana Decriminalization – a path forward for medical cannabis? (4/20 Edition)

Happy 4/20 (to those who celebrate – do so responsibly!)…

Just a short note that yesterday the Illinois Senate passed a marijuana decriminalization bill and it heads to the Illinois House of Representatives.  The Tribune has the story:

“The idea is that people caught with small amounts of marijuana would be fined instead of receiving jail time. The first-term Republican governor contended the old version would have let people carry too much marijuana and set fines too low.

The new edition drops the number of grams allowed from 15 to 10 and raises the range of fines from $55 to $125 to between $100 and $200.”

As noted by the Marijuana Policy Project, this bill closely mirrors a similar bill that passed the House and Senate last year:

“Illinois spends way too much money imposing costly criminal penalties on people who are found in possession of a personal amount of marijuana,” said Chris Lindsey, a senior legislative analyst for the Marijuana Policy Project. “Serious penalties should be reserved for people who commit serious crimes, not used to punish marijuana consumers. Nobody should face a lifelong criminal record simply for possessing a substance that is less harmful than alcohol.”Photograph of Senator Heather A. Steans (D)

Congratulations to the terrific Sen. Heather Steans and the rest of the co-sponsors of SB2228.

The bill passed 40-14 with both Democrats and Republicans supporting the measure.  Expect this bill to also fly through the Illinois House, ushered by the outstanding Rep. Kelly Cassidy, and even signed into law by Governor Bruce Rauner.

So this is my question – could this bipartisan effort be replicated for the extension and expansion of the Illinois Medical Cannabis Program?

GUEST BLOG: As A Lawyer, Can You Counsel Clients on Marijuana Law?

[I am excited to share my first guest blog!  I asked my friend and colleague, Neil Posner, to write a blog post about the professional responsibility issues for attorneys like me: pot lawyers.  Please enjoy responsibly:]

As A Lawyer, Can You Counsel Clients on Marijuana Law?

By Neil Posner

Several jurisdictions in the United States have legalized—in one form or another—the use of cannabis. It already is legal to use cannabis for recreational purposes in Colorado, Washington and Oregon. Alaska has legalized it but no cultivation centers have yet been approved. A ballot initiative in the District of Columbia made recreational use legal, but Congress has blocked implementation of that.

The medical use of cannabis is legal in Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Florida (on a very restrictive basis), Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington. Several other states are within striking range of legalizing cannabis for recreational and/or medical purposes. Thus, we are fast approaching the point where recreational and/or medical use of cannabis is or will be legal in at least half of all United States jurisdictions.posner_new_web

Federal law, however, has not caught up. The Controlled Substances Act (“CSA”), 21 U.S.C. § 841(a)(1), makes it a federal crime to manufacture, distribute or possess with intent to distribute marijuana. And even though the Department of Justice has issued memos on their enforcement policies (see, e.g., the “Ogden Memorandum” of October 19, 2009, (https://www.justice.gov/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states) and the “Cole Memorandum” of August 29, 2013 (https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf)), the question for lawyers is: If cannabis is legal in my jurisdiction but illegal under federal law and in other states, can I advise clients on the subject without losing my license? Well, your guest blogger is here to help!

Let’s begin by looking at ABA Model Rule 1.2(d), which provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal 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.

The ABA’s most recent annotation to this rule—which I quote in its entirety because it has citations to lots of interesting and useful resources—states:

This issue has come into relief in jurisdictions that expressly permit the limit use of marijuana—a crime under federal law. See, e.g., Ariz. Ethics Op. 11-01 (2011) (permissible under Rule 1.2(d) for lawyer to assist clients wishing to start businesses or engage in other actions permitted under Arizona Medical Marijuana Act); Colo. Ethics Op. 125 (2013) (lawyer may advise client about state or federal law governing marijuana use or commerce but may not assist client in marijuana transactions such as drafting or negotiating contracts that would violate federal law); Conn. Ethics Op. 2013-02 (2013) (lawyer may advise and represent client concerning state requirements for licensing and regulation of businesses that grow or dispense marijuana for medical purposes but must inform client that such businesses violate federal criminal statutes, and lawyer may not assist client in criminal conduct); Me. Ethics Op. 199 (2010) (Rule 1.2 makes no “distinction between crimes which are enforced and those which are not,” so lawyer must “determine whether the particular legal service being requested rises to the level of assistance in violating deferral law”); Colo. Rule of Prof’l Conduct 1.2, cmt. [14] (“A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16, and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitution provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy”). See generally A. Claire Frezza, Counseling Clients on Medical Marijuana: Ethics Caught in Smoke, 25 Geo. J. Legal Ethics 537 (Summer 2012); Sam Kamin & Eli Wald, Marijuana Lawyers: Outlaws or Crusaders?, 91 Or. L. Rev. 869 (2013); Alec Rothrock, Is Assisting Medical Marijuana Dispensaries Hazardous to a Lawyer’s Professional Health?, 89 Denv. U.L. Rev. 1047 (2012).

Ellen J. Bennett, Elizabeth J. Cohen, Helen W. Gunnarsson, Annotated Model Rules of Professional Conduct 46 (8th ed. 2015). See also new Comment [1] to the Nevada Rule of Professional Conduct 1.2 (which closely mirrors Comment [14] to Colorado’s Rule 1.2); Minn. Stat. § 152.32, Subdivision 2(i) (“An attorney may not be subject to disciplinary action by the Minnesota Supreme Court or professional responsibility board for providing legal assistance to prospective or registered manufacturers or others related to activity that is no longer subject to criminal penalties under state law pursuant to sections 152.22 to 152.37.”); and Ill. R. Prof’l Conduct 1.2(d)(3) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may . . . counsel or assist a client in conduct expressly permitted by Illinois law that may violate or conflict with federal or other law, as long as the lawyer advises the client about that federal or other law and its potential consequences.”).

It’s especially important to pay attention to the distinction between giving “advice,” and giving “assistance.” To do that, there really is no substitute for reading the rules and ethics opinions in the jurisdictions in which we practice.

So, as long as it remains a federal crime to manufacture, distribute or possess with intent to distribute marijuana, and to cross state lines with it, here are the biggest takeaways:

  • Closely read the Rules of Professional Conduct and the Ethics Opinions in each state in which you practice;
  • Keep in mind the distinction between “advise” and “assist”;
  • Don’t assume that the Rule you read last month is the Rule that’s in force today; and
  • If in doubt, call a lawyer who deals with these issues on a regular basis!

__________

Neil Posner is a policyholder’s insurance coverage attorney who also practices extensively in the area of lawyer’s professional liability, which includes counseling lawyers and law firms on professional responsibility and ethics matters. He has served as an expert witness in this area, and speaks and writes extensively on the subject.  Neil can be reached at nposner@muchshelist.com and (312) 521-2623.

 

 

Attend a cannabis conference…but not more than 2 of them!

Odds are, most of you have attended a few conferences in your life.  It could have been a gaming/casino industry convention in Las Vegas, 414 Milwaukee Day, LebowskiFest, or a jewelry fashion show in Rosemont, Illinois (Yes, I’ve been to the jewelry fashion show.  No, it was not my idea.  No, I did not enjoy myself.).  You see my point – there are conferences for everything in our lives.CannaTech

Given my professional career, I get to attend a number of conferences.  Pot Conferences.

My guess is that half of you are already smiling at the thought of a McCormick Place-level throng of attendees getting high and eating munchies. Nope, it is not that kind of party.  But if you are curious, let me describe to you what it is like attending a cannabis industry conference.

Let’s start with commonalities with almost any other conference:

  1. Headliners/keynote speakers, endless expert panel discussions with 2-4 panelists, expo’s with businesses promoting their products and services, and lanyards that share your name and workplace.
  2. Convention centers and conference ballrooms, stale hotel rooms, and hundreds or thousands of people you don’t know.
  3. Several days of meetings offering you the best chance to discard a bulk of your 500+business cards, and before you can blink you are longing to return home to your family and personal life.

Here is where cannabis conferences diverge from the norm:

  1. Yes, there is a fairly-constant scent of marijuana throughout the conference from those vaping in their hotel rooms, outside, and perhaps in the stairwell.  Sometimes there are cannabis-friendly gatherings depending on what state the event is in (Colorado=yes; Illinois=no).
  2. The vendors are unmistakably focused on the cannabis industry – promoting their vaporizers and extraction machines, insurance and consulting services, and everything in between.
  3. There is an electricity in the air.  Everyone seems to embrace the presumption that this industry is booming, that it is morally and scientifically beneficial, and will be trending upwards for many years to come.  Attendees also seem to appreciate, and thrive on, the ever-present risk in the cannabis industry that it all could be shut down at any moment by the federal government.  It sometimes feels like a capitalistic version of civil disobedience.
  4. It is not boring.  We are talking about cannabis, after all.

Conference - MJBizSummit2

There are many, many conferences/social gatherings/industry conventions to choose from.  They could cost as little as $20 for a meet-up at a bar, or as much as $750 per person and thousands of dollars per company to stage a booth.  Some of the best are hosted by groups like the National Cannabis Industry Association, Marijuana Business Daily, and Marijuana Investor Summit.  I’ll even shamelessly promote a smaller Illinois conference I helped organize discussing cannabis legal issues.

But as fun and educational as cannabis conferences can be, I would strongly discourage you from making a habit out of attending them.  For starters, they quickly become redundant – betraying how recycled the session information can be.  It can be difficult to see through those peddling B.S. versus those that are true industry experts.  The events are expensive – paying $750 a pop, plus hotel and airfare, can quickly become much too expensive for the likely return.

Finally, the proliferation of conferences diminish the overall value.  Marijuana Business Daily showed how quickly they have expanded by identifying 6 conferences in 2014, but 31 conferences in 2015!

Forbes joined in by interviewing industry leaders on the impact of so many pot conferences:

“You can literally attend, speak or exhibit at an event every weekend,” said Chris Drissen, Chief Business Development Officer at O.penVAPE. “It has really had a negative impact on the attendance and viability of the few shows that are worth going to.”

For those of you considering attending your first cannabis conference – choose wisely and sparingly.  It is absolutely worth going to one, but if you start attending so many that you reuse your lanyard from conference to conference, consider finding other things to do with you hard-earned cash.