The American Bar Association this week approved a resolution calling on Congress to ensure that lawyers can provide counsel to state-complaint clients in the marijuana space without fear of federal prosecution.
A report accompanying the resolution noted that a majority of states now legalize marijuana for medical use, recreational use or both. And yet it still remains illegal at the federal level.
“This tension between federal and state laws directly impacts attorneys with clients in or interested in entering state-authorized marijuana business activities,” according to the report, submitted by the association’s Tort Trial and Insurance Practice Section.
“Regardless of state law, so long as marijuana remains a Schedule I controlled substance such client’s marijuana business activities remain federally criminal conduct,” the report continued. “Thus, the provision of legal advice and services to assist clients in such conduct may also in itself constitute a criminal offense, whether under a theory of conspiracy or aiding and abetting.”
The one-sentence resolution asks Congress to “clarify and explicitly ensure” that lawyers can legally advise clients about compliance with state-legal marijuana-related activities.
The resolution’s co-author, Day Pitney counsel Steven Cash in Washington, recently spoke to Law.com about how the ABA measure came to be. Here are some excerpts from that conversation, edited for length and clarity.
What’s your background on this issue?
Steven Cash: I’m in a white-collar national security group at Day Pitney. Two years ago or so we had a major client come to us and say, “We’re writing these contracts that involve cannabis, is that OK?” And that got us really thinking about this issue because not long after that we started having more and more clients come to us with cannabis related issues.
So we started thinking about what our policy was going to be. And we took a pretty conservative approach. There are business risks associated with this. We had to figure out whether our clients would be upset with us if we ended up with a cannabis-related practice? Is there revenue? Is it too risky?
The second issue was, could we get in trouble? Does it expose the firm to risks, other than reputational risks?
We viewed it under the Cole Memorandum and the Rohrabacher amendment as very unlikely there would be a prosecution. But that got us to the legal, professional and a truly deep ethical question, which is, so what if you’re not going to be prosecuted? How do we feel about knowingly violating a federal law, even if we don’t think we’re going to get in trouble for it?
We kept coming back to, should lawyers do this? So that’s how we thought about it at the firm.
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How did the ABA resolution come about?
I was asked to speak in September at the ABA TIPS cannabis committee event in Chicago. And I’m sitting on a panel, and everyone in the room, in one shape or form, is what I’d call a true cannabis lawyer.
And I basically say, “I sat through the last three panels and I’m looking out over a room of really smart lawyers who’ve been telling me about all of the wonderful things that I’m doing to help their clients set up and run cannabis businesses, and I’m a former prosecutor and it sounds like I just heard two and a half hours of confessions, which I notice are being videotaped.”
“Will a prosecutor decide to do something about that? I don’t know. I don’t think so. But I think we should all sort of search our souls. Is this OK? Is this OK for the profession?”
That got ABA people talking, and we talked about it in the context of cannabis. So we put together a resolution and we put together a report in support of that resolution and it got put on the agenda for last week.
Are you an outlier in this in some ways? A lot of lawyers are aware of the state-federal conflict, but they’re OK knowing their state bar has professional guidelines giving lawyers the blessing to serve clients in this space.
I think some lawyers hadn’t thought all the way through. In addition to not really remembering Con Law, most of the lawyers in this space are not criminal lawyers. They also haven’t thought about aiding and abetting a conspiracy since first-year law school. So it’s novel for them to think about it that way.
Any chance that anyone in Congress takes this up quickly?
I think there is. Even those members who have been opposed to marijuana legalization may be amenable to the idea that we can at least have lawyers making sure that people comply with state regulations.
It’s not only a rule of law or a policy issue here. It’s a practical issue. All these states’ regulatory schemes are fairly complicated schemes, which are designed to be run by lawyers. If you put out a couple hundred pages of regulations written in regulation legal style, you’re sort of counting on there being lawyers to help people comply with them.
Even members of Congress who do not want the federal government to legalize, I think if you’re not going to take steps to shut down all the states, you’d say I’d at least like it to be done according to the rules that the states are setting up. And that’s not going to happen without a really engaged bar.
The original version of this Q&A was published in the weekly Law.com cannabis briefing Higher Law.