Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

The era of marijuana&rsquo;s underground economy might be&nbsp;coming to an end.&nbsp; More than&nbsp;20 states and the District of Columbia have legalized&nbsp;growing, processing, transporting, selling and/or using&nbsp;marijuana for medical purposes.&nbsp; Two states, Colorado and Washington, have also legalized recreational and personal use.&nbsp; The Department of Justice&nbsp;has<a href="http://www.justice.gov/opa/pr/2013/August/13-opa-974.html"> made noises about backing off on prosecuting certain marijuana crimes</a>.&nbsp;&nbsp;
As a result, there is a growing demand for legal services associated with the burgeoning marijuana industry.&nbsp; Possible players include&nbsp;
<ul>
<li>growers</li>
<li>retail sellers</li>
<li>lenders</li>
<li>tenants and landlords</li>
<li>technology inventors</li>
<li>equipment manufacturers.</li>
</ul>
Great news for a legal industry in the doldrums.&nbsp; Yippee!&nbsp; Hop on the gravy train!
Not so fast, you would-be rain makers.&nbsp; The grass is not always greener, and there are hazards for the unwary lurking among the weed(s).&nbsp; In the fog of all this pot-mania, it is easy to forget something significant about marijuana (I&rsquo;m out of metaphors) &mdash;&nbsp;it&rsquo;s still illegal.&nbsp;
Marijuana is a Schedule 1 drug, and possession, sale, and distribution are federal crimes.&nbsp;&nbsp; Therefore,&nbsp;conspiring with or aiding and abetting someone who possesses, sells or distributes marijuana is a crime under federal law.&nbsp;&nbsp;
So, if your legal services might be argued (by some zealous prosecutor) to constitute conspiring in or&nbsp;aiding or abetting a client in possessing, distributing or selling marijuana, you may be committing a federal conspiracy crime.&nbsp;
The looming ethical issue arises under&nbsp;Model Rule 1.2(d),&nbsp;which provides that a lawyer shall not &ldquo;assist a client in conduct the lawyer knows is criminal or fraudulent.&rdquo;&nbsp;
Against this backdrop, you&nbsp;must examine whether providing requested representation and advice in the &ldquo;marijuana space&rdquo; might constitute &ldquo;assisting&rdquo; in a violation of federal law, even in those state jurisdictions that have legalized the client&rsquo;s activity under state law.&nbsp;
Likewise, if your&nbsp;legal assistance facilitates the possession or sale of marijuana in violation of federal criminal law, you&nbsp;may also be at risk of violating Model Rule 8.4(b) (professional misconduct to&nbsp;commit a criminal act that reflects adversely on the lawyer&rsquo;s fitness)&nbsp;as well as Model Rule 8.4(d) (prohibiting&nbsp;engaging in conduct&nbsp;prejudicial to the administration of justice).
In an attempt to sort out the problem,&nbsp;four state authorities or bar associations&nbsp;issued ethics opinions.&nbsp; (<a href="http://www.azbar.org/Ethics/EthicsOpinions/ViewEthicsOpinion?id=710">Arizona</a>, <a href="http://www.cobar.org/tcl/tcl_articles.cfm?articleid=8370">Colorado</a>, <a href="http://www.cobar.org/tcl/tcl_articles.cfm?articleid=8370">Connecticut</a>&nbsp;and&nbsp;<a href="http://www.maine.gov/tools/whatsnew/index.php?topic=mebar_overseers_ethics_opinions&amp;id=110134&amp;v=article">Maine</a>.)&nbsp;&nbsp;In May, <a href="http://www.reviewjournal.com/news/court-nevada-lawyers-can-give-advice-medical-marijuana">Nevada&nbsp;</a>&nbsp;amended the comments to its rules of professional conduct to allow lawyers to counsel clients on the state&rsquo;s medical marijuana laws.&nbsp; <a href="http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2014/2014(05)%20redlined.pdf">Colorado&nbsp;</a>&nbsp;also amended the comments to its rules.&nbsp;&nbsp;
The results of these efforts are&nbsp;inconsistent.&nbsp;&nbsp; Though several seem to permit some participation by lawyers, they do not appear to completely insulate lawyers&nbsp;from discipline.&nbsp;&nbsp;And lawyers still may face disciplinary action if the client conduct goes beyond what is permitted under state regulations.&nbsp;&nbsp;
Also, there can be&nbsp;additional issues raised by advising local businesses regarding their operations in other states that have different marijuana laws.&nbsp;&nbsp;Most authorities discern&nbsp;a critical distinction between on the one hand presenting a client with an analysis of the legal aspects of questionable conduct and on the other hand recommending the means by which a crime or fraud may be committed with impunity.
The take-away:&nbsp; This is still a developing area with some possible traps for the unwary.&nbsp; Keep aware of your state&rsquo;s legal approach to the industry as well as the ethics opinions in your jurisdiction &mdash; more states will undoubtedly be formulating an approach that will possibly help dispel the smoke.

Representing clients in the marijuana industry: greener grass?