A New IL Med Cann Coordinator: What Does It Mean?

For starters, the Illinois Medical Cannabis Pilot Program (MCPP) is going to be just fine.  For those that missed it, yesterday we learned that coordinator Joe Wright had resigned from his position:

Wright, who resigned Friday, was paid $53,770 last year, according to a public database of state employee salaries. He will be replaced by Jack Campbell, the program’s bureau chief in the Department of Agriculture, Kelly said.

The change in leaders comes as Rauner considers signing a bill to extend the pilot program by 2½ years and adding post-traumatic stress disorder and terminal illness to the list of qualifying conditions. Democratic state Rep. Lou Lang announced last month that he, the Republican governor and the GOP’s House leader agreed to extend Illinois’ four-year pilot program until July 2020.

A transition in leadership of MCPP does not jeopardize patient access to medical cannabis, nor does it suggest any policy changes from the Rauner administration.

We don’t know why Wright resigned, but what matters is that Jack Campbell will do well in the role (presumably pulling double-duty in his prior role at Ag).

Campbell joined the Department of Ag after a 20 year career in law enforcement.

Some might have a gut-reaction against someone who spent much of his career enforcing drug laws, but he has spent the last year learning about MCPP and his recent actions should comfort those enrolled in the program.

At key junctures Campbell has been deliberate, transparent, and fair with the state’s cultivation centers.  In my humble opinion, Campbell will seamlessly maintain the program’s status quo, and I wouldn’t be surprised if some of the program’s persistent issues (delays in new rule making, responsiveness) improve over time.

You may be unaware of exactly what the MCPP coordinator does.  The coordinator’s role varies depending on the status of the program.  During my tenure I focused on rule-making, patient registrations, competitive license processes for dispensaries and cultivation centers, and outreach to educate the public about the program.  Wright oversaw physical site inspections, the first cannabis cultivation, and initial cannabis sales to patients.  Campbell’s new role will be to fine-tune aspects of the program that have proven to impede patient access or unnecessarily penalize the businesses, pushing through new administrative rules, managing the selection process for unclaimed dispensary licenses, and hopefully steering MCPP through the next stage of patient growth with the addition of PTSD and terminal illnesses, and extension of MCPP through 2020.

I liken the coordinator role to being the quarterback for the MCPP teams at Ag, IDFPR, IDPH, and ISP.  The coordinator does not conduct every inspection of a cultivation center, nor does he/she respond to every patient inquiry, but instead ensures broader goals and timelines are met, and is the final say on complex, unanticipated questions.  Illinois is one of the few states that brings together several state agencies to tackle the cannabis program, and it is important for all agencies to follow the same script and work together towards common goals.  The coordinator helps counterbalance the tendency of state agencies to work in silos; without a guiding presence agencies do not always play well together in the sandbox.  Campbell’s track record gives me confidence that he’ll achieve these tasks as the new coordinator.

My advice to the state’s medical cannabis patient and business community would be to focus on encouraging Governor Rauner to sign SB10.  The state’s new Pot Czar is going to be just fine.

Kind Financial lands a Whale

Forgive the Father’s Day interruption, but I wanted to update everyone on a potentially significant new partnership.

While the cannabis industry continues to be fragmented and state-specific, the industry is moving into a new phase.  Institutional businesses across all sectors are starting to dip their toe into the cannabis world.  Kind Financial is the latest to make news by partnering with a global company – Microsoft.

Kind Financial provides various services to the cannabis industry, including seed-to-sale tracking software, a banking solution, and financing for cannabis businesses looking to make new investments without available capital.

Microsoft – well, it’s Microsoft.

Without question this will help Kind’s Agrisoft seed-to-sale business compete for government IT contracts, and it allows Microsoft a foot in the door for the cannabis universe without having to touch the plant, itself.

“No one can predict the future of cannabis legalization, however, it is clear that legalized cannabis will always be subject to strict oversight and regulations similar to alcohol and tobacco; and, KIND is proud to offer governments and regulatory agencies the tools and technology to monitor cannabis compliance,” said KIND Financial Founder and CEO David Dinenberg, said in a statement.

This will not be the last major corporations to wade into the pot-infused waters, and expect more newsworthy partnership on the retail, branding, pharmaceutical, and healthcare fronts.  Congrats to Kind for the big “get”…

Immaculate Conception – the first cannabis seed (or clone)

“Where does the first cannabis plant come from?”

This is one of the thorniest questions a regulator faces when medical cannabis is legalized in their state.  I guarantee you it is a question being asked of Ohio and Pennsylvania as they look to implement their medical cannabis programs.

As you might imagine, it is an uncomfortable question for state regulators to answer.  There is the whole “violating federal law” thing – if you really want to know how long you can go to federal prison for taking a trunk-full of pot from Illinois to Indiana, see here.

In fact, as much the federal government has indicated that state-legal marijuana is not a priority for them, an exception to that generosity is if you are involved with the “diversion of marijuana from states where it is legal in some form to other states.”  So – where does the state’s legal marijuana first come from?

I know I was asked the question on several occasions.  Just one example:

AUDIENCE MEMBER: I had one more question that I couldn’t quite hear earlier when you were answering. Did someone ask where the seeds would come from for the product or how we would acquire those? I missed that answer.

MR. MORGAN: The question was: Did we previously address where the seeds and clones will come from? And my answer was that the rules and statute don’t address that, and so we — we are not addressing that directly.

I like to consider myself an expert in the “non-answer answer.”

Hawaii recently received similar treatment, and Americans for Safe Access offered up the quote-of-the-year:

“Somehow, these things just have to kind of miraculously appear,” said Andrea Tischler, chairwoman of the Big Island chapter of Americans for Safe Access. “Short of Jesus showing in the heavens, I don’t think that’s going to happen … the original batch I know is going to be obtained illegally. You can’t (legally) transport it through the mail. You can’t bring it in from (another) state, so how are they going to get those clones or seeds?”

Internally, we referred to this as the “Immaculate Conception” problem.  The federal law could not be clearer, but yet Illinois cultivators found a way.  To my knowledge, no one was arrested transporting the first cannabis clones to Illinois, but we certainly fretted about this.  We discussed adding guidance in administrative regulations, but what could we possibly say?  In the end, we went with the best non-answer we could find: “I’m sorry, but the administrative rules are silent on that issue.”

A good day…

Today the Illinois Senate passed House Amendment 3 to Senate Bill 10 – sending to Illinois Governor Rauner a significant package of reforms and changes to the Illinois medical cannabis program – and believe it or not, he is going to sign the Bill.

We owe thanks to Representatives Lou Lang, Jim Durkin, and Governor Rauner.

                                                               

Anyone interested in reading the specifics can go here, and press coverage here and here.  The short version:

  • Extends the program several years to mid-2020 (instead of expiring Dec. 31, 2017);
  • Adds PTSD and terminal illnesses (terminal illnesses will have an expedited Dept. of Public Health approval);
  • Changes patient registration to 3-years before renewal, and the horrid patient fingerprinting need only be done once;
  • Clarifies that a doctor only certify a patient has a qualifying medical condition (not necessarily condoning the therapeutic benefit);
  • Dissolves the existing Medical Cannabis Advisory Board of patients, doctors and other health professionals, to be reconstituted under Gov. Rauner; and
  • Fixes a conflict in the law that threatened the lawful gun ownership of medical cannabis patients, plus more.

This Bill does not have everything for advocates (it does not add chronic pain, it does not add home-grow, etc), but with all the positive things SB 10 does, perhaps the most critical is that it gives hope and positive momentum to the Illinois program.

There is one notable (albeit minor) downside.

Having been involved in the creation of the Medical Cannabis Advisory Board, the dissolution of this Board gave me a moment of pause – the leadership of Dr. Leslie Mendoza Temple, Dr. Eric Christoff, Dr. Allison Weathers, patients Jim Champion and Michael Fine, and all the others has been outstanding, and frankly exactly what I had hoped for when we initially designed this team of volunteers and medical experts to consider the ever-changing research behind medical cannabis.

I will need to look past the downside of losing these wonderful volunteers, and focus on the huge benefit to the medical cannabis program.

One of the heroes of the Pilot Program, Leader Lou Lang, said it best:

“I have followed the work of the [Advisory] Board and they have done a stellar job.  They have listened to a lot of testimony, they read a lot of documents.  Before I made my final agreement to move this bill in this way, I called each of them to tell them what was in this bill.  Each of them said to me, ‘we think this board does good work… but if what we have to do to lengthen and strengthen this program, and make it better for patients and licensees and doctors and everyone in the pipeline, is to agree to reconstitute this board, then count us in.'”

Amen.

Compliance – for the regulators and regulated.

“Compliance” is a term that is thrown around – often without a clear definition of what it means, and how it matters.

I initially worked with “compliance” matters in my first job as a healthcare consultant.  Compliance plans are ubiquitous in healthcare, largely developing after audit and anti-fraud initiatives of the federal government in the 1990’s.  Today – most industries have ongoing compliance activities, compliance officers, and compliance plans.  Compliance can simply be a catch-all position to reduce risk for a company, and often uses employees without specialized compliance experience.  I am particularly partial to “How to get a job in compliance with little or no experience.”  At least they’re being transparent about it.

But true compliance needs are growing.  The Wall Street Journal thinks a Compliance Officer is one of the hottest jobs in America.  I’ll take WSJ’s word for it, but the topic itself tends to be boring and fall on deaf ears.

The truth is, compliance matters and should be taken seriously – especially in the developing cannabis industry with the variety of security, laboratory testing, packaging, record keeping, product tracking, and other regulatory requirements.  Compliance services are an increasing trend in the industry – most recently leading two of the country’s better known cannabis-focused law firms to jointly create their own compliance software for businesses.

While we’re at it, compliance matters not only for those being regulated, but for the regulators themselves.

Think of it as akin to the issue of “who is policing the police?”

When we were developing the Illinois medical cannabis program, there were dozens of issues to address every day of the week.  We dealt with the crises, but we were left with precious little time to consider how the implementation was going.

How would we establish benchmarks for success of the Illinois medical cannabis program?  How would we improve and modify the program moving forward?  How would cannabis businesses be able to share valid suggestions without the government disregarding them as self-serving?  How could Illinois learn from best practices of other states, and fix unanticipated problems, in the face of constant political, fiscal, and bureaucratic pressures?

“Compliance,” you say?  Indeed.

Some common compliance elements include effective communication, clear policies and procedures, monitoring program success and failures, appropriately responding to unforeseen or negative incidents, and general good management principles.  Of course these aspects are beneficial to a private cannabis business.

I would go so far as to say these elements are even more critical, and less common for government regulators and programs enforcing cannabis laws.  Government regulators don’t often have the time or training to implement successful compliance tools – that’s what outside consultants and compliance experts are for (here’s lookin’ at you, Wall Street Journal!).

Some states are already diligently tracking compliance markers for their medical and adult-use cannabis programs. Washington and Colorado have produced annual reports measuring a variety of benchmarks for their programs. Arizona went a step further with their medical program and hired a compliance consultant to conduct a comprehensive review of strengths and weaknesses of their medical marijuana system:

“The [Beacon-ID consulting] report recommends a state inventory tracking system, expanding patient registry systems to include faster and better sharing between physicians, regulators and dispensaries, standardized rules for packaging including child-proofing and increased inspections including unannounced ones.”

All state cannabis regulators should ensure a rational review of the successes and failings of their respective programs – especially those like Illinois where the program automatically sunsets January 1, 2018 without legislative renewal or expansion. We can all benefit from taking into account extensive data about the business, health, security, and quality of the state’s cannabis industry. The various state agencies must incorporate the tenets of compliance for us all to effectively evaluate next steps – we can’t just wing it and make emotional decisions about the future of these programs. A compliance plan is just one way for the regulators to track the successes and failures, and I hope such preparation and self-analysis paves the way for the continuation and expansion of the Illinois medical cannabis program.

Maryland Med Cann is Delayed Again – Where is the Outrage?

I want to share something with all of you: I don’t like waiting.

I don’t like to wait for service at a restaurant, I loathe waiting in lines for roller coasters (but love getting to the front seat of Great America’s American Eagle), and I have a visceral reaction whenever government takes longer to make decisions than it reasonably should.

Whether it is my local city hall staff taking weeks to decide whether I can cut down a tree on my own property, or a state government waiting to announce who has been selected for limited medical cannabis licenses – my blood pressure spikes and I want to take action to push the decision along using any (legal) means possible.Backyard

The tree on the right was saved by local government staff…but I will find a way to get you, tree.  I will find a way…

So you can imagine how I reacted today when the Maryland Medical Cannabis Commission (“MMCC”) again punted on announcing who will be selected for growing, processing, and dispensing medical cannabis in The Old Line State.  The MMCC met and announced that, although applications were received on November 6, 2015, they do not expect to announce selected businesses until at least August 2016.  A total of 10 months waiting – or more.  On top of the fact that Maryland has been tweaking its medical cannabis law since 2013, this is an unacceptable delay.  This is perhaps more striking because my interactions with the MMCC commissioners and Maryland Department of Health and Metal Hygiene staff have been very good – they are capable and compassionate.

Maryland’s program implementation has been relatively slow and below the radar.  The state’s Republican Governor waited three months to appoint a new director of the MMCC when the previous director had stepped down:

“Gov. Larry Hogan (R) has tapped a former state trooper and Republican political candidate as Maryland’s top medical marijuana regulator.

Patrick Jameson started Monday as executive director of the Maryland Medical Cannabis Commission, a spokesman for Hogan said.”

Okay – how does 10 months compare to other medical cannabis states that have a competitive, merit-based selection process?  Maryland is at the bottom of the pack.

Hawaii, Minnesota and New York announced licenses within 3 months of receiving applications, Illinois took approximately 3 months (discounting for a 3 month political delay), and Florida and Massachusetts needed roughly 6 months.

Why the delay?  No one knows.  It could be due to the large number of applications, but Maryland instituted a strict page limit reducing the size of the applications compared to the other preceding states.  You could chalk it up to the transition to a new Executive Director, but by his own admission, he doesn’t have a vote in the license selection.  I presume the delay is due to Maryland’s contracted application scorers: Towson University’s Economic Studies Institute, and its subject matter expert sub-contractors.  Could the sub-contractors have over-promised their skill-sets?  Could unknown conflicts have arisen?  It does not particularly matter – the delay has been too long. 

What is perhaps most surprising is the lack of vocal anger by potential Maryland patients.  To date I have only seen a solitary Baltimore Sun letter to the editor on the topic from parents of potential patients:

“The Natalie LaPrade Medical Cannabis Commission has made strides to move forward the process to bring safe medical cannabis as a treatment option in the state of Maryland. But now that a new executive director has been appointed, the time to finish the job started in 2014 is long past. Families in Maryland are pleading with our elected officials and the commission to implement the medical marijuana program.

The electrical firestorms in our kid’s brain, and in those of every other epileptic child in Maryland, loom every day. Thus, every day, we must have available all the tools to do anything — including medical cannabis — to stop the seizures.”

The fact that bureaucratic delays are keeping these patients at bay from the medicine they need is unacceptable.  Hopefully MMCC will find a way to surprise everyone and expedite the timeline for license announcements.  Until then, it’s time for all of us to be outraged…

E-Cigs, Cannabis Vaporizers, and the FDA: The Beginning of the End?

Walking down the street in any urban area today, you will see people smoking e-cigarettes and using vaporizers.  If you are like me, you’ve wondered whether they are smoking a tobacco-based product, or cannabis-related product.  There is no easy way to tell.

vaping

When I worked for the Illinois Department of Public Health, I was surprised that e-cigarettes were not regulated at the federal or state level.  It appeared to be a huge loophole.  The obvious difference is that smoking tobacco without the combustion of a cigarette is most certainly less harmful for the smoker and those around them.  But no one really knows how safe it is, and that question is part of why it took so long for the Food and Drug Administration to intervene.

That all ended this week when the FDA put their foot down:

E-cigarettes and other tobacco products like premium cigars and hookahs will be regulated in the same way the government regulates traditional cigarettes and smokeless tobacco.

Secretary of Health and Human Services Sylvia Burwell and the commissioner of the Food and Drug Administration, Dr. Robert Califf, made the announcement about their final rule Thursday.

Predictably, public health advocates are ecstatic, and the vaping industry is enraged.  My only question is: where’s John Boehner when you need him?

The impact on cannabis users could be interesting.  To my earlier point, there are many that use vaporizers for their cannabis, and some medical cannabis states only allow liquid cannabis products (particularly in the Southeast states), so what does this mean for those patients?

For starters, we are not necessarily talking apples to apples.  As Leafly notes:

When it comes to legislation, the difference between the cannabis and e-cigarette industries is that the former is desperate for regulations while the latter is doing everything it can to avoid them. There are many different viewpoints, but the vast majority of those in the cannabis industry seek regulation because they know that it will add standards and legitimacy to their business. But many e-cigarette makers and consumers see attempts to regulate e-cigarettes as just a way to take away their newfound freedoms and get them hooked on smoking again.

Valid point, but how will cannabis users be impacted by the new FDA rule?  It is far from certain, but here is a good rundown:

Many cannabis consumers have had the experience of visiting a head shop and being scolded to describe bongs clearly intended for marijuana consumption as “tobacco water pipes” in order to avoid violating drug paraphernalia laws. But thanks to the new FDA rules and rapidly changing public attitudes and laws surrounding cannabis, consumption device manufacturers and retailers may begin to advertise such products as “for marijuana use only.”

The federal drug statutes contain an exemption for “any person authorized by local, state or federal law to manufacture, possess or distribute” paraphernalia, but explicitly advertising vape products as for cannabis consumption could be risky for companies without a clear state or local license to manufacture marijuana devices or who operate in or distribute products to states without legalization.

As with any new federal regulation of this magnitude, expect some Congressional outrage (sans Boehner), public outcries by e-cig users, and likely lawsuits.  The impact on the cannabis industry will play out over time, but keep an eye out for changes to vaporizer marketing…

*Photo courtesy Flickr user Lindsay Fox at EcigaretteReviewed.com.

Springfield, Illinois – Oh how I’ve missed, thee…

I am often asked if I miss working for State of Illinois government (“State”).  I do.  Sometimes.

I worked for the State for 5 and 1/2 years, and in full disclosure I truly loved it – the crisis management, the public policy debates and decisions, and the asbestos-ridden ceilings.

My first State job was as a Springfield-based attorney for the group health insurance program for state employees and retirees.  In truth, I got the job more for my willingness to relocate from Chicago to Springfield, IL, than for my exceptional healthcare law chops (though I had some of those too).

I spent the next 16 months living in Springfield (initially on a borrowed inflatable mattress, later on a borrowed full-sized mattress, and then upgrading to my own apartment), and the experience was roughly what you might expect.  When the legislature was in town, Springfield had an unmistakable electricity.Ghost Town

When they were out of town – it looked something like this===>

Fine – Springfield has less tumbleweeds than that.

For the following four years I worked for the State out of a Chicago office, but frequently headed down I-55 South towards the State Capitol.  I really do hold some fond memories of S-patch (it’s too small for a field, so it’s more like spring-patch, get it?).  Perhaps most of all, I miss the exceptionally gracious people that live there year-round, and very much long for the days of eating authentic buffalo chicken horseshoe sandwiches (see below – YUM!).  If that surprises you, you must not have read my earlier post about Olive Garden.

horseshoe sandwhich

This week I will return to Springfield after a hiatus from traveling there.  My emotions have varied between nostalgic excitement, to deep thoughts on how to advance progressive policy issues, to sadness to have to be away from my family – even for one night.

I will use this trip to start rekindling my long-lost Springfield friendships and legislative advocacy – so look for me in the halls of the Capitol, and perhaps at my old horseshoe sandwich haunts.  It’s time to get back in the game.  Springfield, here I come.

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.

 

 

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