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Expounding on the Role of Attorneys in relation to the Cannabis Industry


icon  08 Dec, 2016  /  icon  0        Author: Jack

Marijuana for recreational use is now decriminalized in California. However, the federal government still considers marijuana illegal regardless of the use. Therefore, state’s lawyers have to deal with serious ethical matters revolving around the legal fog that still is a major challenge to the latest reforms on weed. Marijuana advocates got a resounding victory on November 8, 2016 during the elections that saw five states legalize marijuana for recreational use. These included Maine, California, Nevada, Arizona and Massachusetts. Four other states voted in measures to decriminalize medical cannabis. It was a time of celebration for marijuana users in these states that have now become marijuana-friendly according to the states laws and regulations. Many hopefuls believe that the recent developments on the issue of marijuana are a turning point for the national government.  Going back to the campaign period, Trump told the Washington Post that he considered the issue of cannabis legalization as a matter of the state government. He reiterated that he will respect the laws regarding marijuana that have been passed by the state governments. Many lovers of marijuana expect Donald Trump to fully respect these promises not because it is the right thing for him to do but because these developments have gained the support of many people across the United States.

The appointment of Senator Jeff Sessions as his attorney general has however, sent some bad signs to the weed industry and now, people are concerned about the future of marijuana as Sessions assumes office. For Sessions, marijuana is not meant for good people and he has over the years disregarded the benefits of using marijuana for whatever reasons. Despite the different views, customers in a number of states have continued to access marijuana for sale online. This is the far the marijuana industry has come despite the conflict between different states and the federal government. Can Senator Sessions let the marijuana business be or will he use the authority under the federal government to prosecute weed users and the businesses that were taken out of the black market through state laws legalizing the use and sale of cannabis? Sessions has been on the headlines for some time now especially on matters to do with marijuana where his hostility towards the substance has been highlighted.  In that case, will attorneys in California face professional penalties for engaging the state affairs instead of enforcing federal laws?

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What can we expect of Attorneys on Marijuana-related Cases?

Despite medical marijuana being legal for 20 years now, we still are not sure of matters related to how attorneys could take part in the growing recreational cannabis industry. Again, the State Bar actions for the last two decades shows a policy of implicit approval:  the State Bar has never sanctioned attorneys taking part in the medical cannabis industry. In 2015, the San Francisco’s Bar Association of San Francisco gave out an opinion stating that an attorney from California can ethically represent a client from the state in lawfully forming and running a medical cannabis dispensary and in any other pertinent matters, although the attorney could help and abet any violations of the federal in doing that.  The silence by the State Bar on this view may be construed as a nod of acceptance.

Meanwhile, federal questions are beginning to emerge. However, attorneys must be very careful not fully trust the State Bar’s apparent indifference to Cannabis activities. The neglect by the State Bar has coincided with the long duration of federal conflict with the state weed activities. If the federal government takes an anti-pot policy that would charge attorneys representing cannabis businesses with federal offenses, we can only guess on the path to be taken by the State Bar. Maybe, it would treat the resulting crime convictions as offenses of moral turpitude for the intention of suspension or disbarment. Even though sanctions in the past could offer some understanding into the approach of the State Bar onwards, the brave emerging world of decriminalized weed and a hard-to-please Depart of Justice challenge easy request of precedent.

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Here is the problem as far as the attorney duties are concerned: states can legalize marijuana delivery for recreational use contrary to the federal law whereas attorneys are expected to abide by the duties of supporting the constitution and regulations set therein concerning the United States and the state as well. Therefore, they cannot assume function to favor one side at the expense of the other. In this case, an attorney representing a cannabis-related business will definitely not be supporting the United States laws. A case can be applied based on such a perception and put the attorney in trouble. Well, this is a far-fetched thought because the State Bar has never taken such an action while attorneys have been participating in marijuana-related businesses. Therefore, it is important for the State Bar to provide guidance with immediate effect and clarify to members how their participation in the weed industry will be protected.c

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