“Legalized Pot Might Create Work Lawyers Fear Going After”
As Pennsylvania continues to debate how and whether to legalize medical marijuana usage, ethics concerns and client pushback are forcing many lawyers to sit back on what could be the biggest industry to come to the state since the legalization of gaming.
Lawyers and lobbyists in support of medical marijuana legalization in Pennsylvania say its passage is closer than ever, with the Senate on board and the House needing to work out some competing methods for structuring the industry. But some are more subdued in their optimism, noting the passage of a budget is probably higher on the General Assembly’s priority list.
The question still seems to be when, not if, and that has caused the attorneys who are interested in representing marijuana companies to seek guidance and protection. Last week, the American Trade Association of Cannabis and Hemp called for any legislation passed in Pennsylvania to include protections for attorneys in the space.
“Lawyers representing cannabis businesses must be able to do so without fear of running afoul of the law or losing their license by representing members of the industry,” said attorney Andrew B. Sacks, managing partner of Philadelphia-based Sacks Weston Millstein Diamond and a member of ATACH’s Pennsylvania state-level coalition. Sacks is the first to acknowledge the request is purely symbolic given the Pennsylvania Supreme Court has sole power to outline attorney ethics rules.
“That whole area has been so hairy all across the country that … to me, in my 31-year career, this is the biggest ethical issue that I have ever seen,” Sacks said. “You have a federal law that says this is a crime and you have a state law that says we need you.” A lawyer hauled before the state Disciplinary Board with only a symbolic legislative protection would have a major uphill battle, Sacks said. That is why he went to the Philadelphia Bar Association for an advisory opinion on the issue. As it turned out, the Pennsylvania Bar Association also had several similar inquiries. The two associations have been working together to issue an opinion.
According to former PBA President Thomas G. Wilkinson Jr., a joint formal ethics opinion concerning marijuana-related issues not limited to medical marijuana is under review by the PBA legal ethics and professional responsibility committee and the Philadelphia bar’s professional guidance committee. “It is far along but we cannot provide a specific date when it will be finalized and issue[d],” Wilkinson said in a statement. “The PBA committee is next scheduled to meet on Sept. 30 in Pittsburgh.” Sacks said the advisory opinion will be “crucial.” He said he knows of a number of law firms that aren’t going near the industry while the federal government still considers marijuana in the same class as heroin and cocaine.
Earlier this year, for example, Ballard Spahr reportedly withdrew from representing a marijuana dispensary in New Jersey over fears the attorneys’ licenses could be put in jeopardy. And other firms with large clients in the medical and life sciences fields have been told those clients might not think too highly of marijuana-related companies on the firms’ client rosters….
In the 23 other states that have some form of legalized marijuana usage, many of the states have amended attorney ethics rules to protect lawyers entering the industry. Clearfield said he would expect something similar would be needed in Pennsylvania and said there was some concern about how long that process could take and what lawyers would do in the interim….
“I think any time a new industry starts up there is a lot of work for lawyers and this is definitely going to be a new industry and state-specific,” Clearfield said. Clearfield said likening the advent of the marijuana industry in the state to that of the gaming industry was an apt analogy. He said the cannabis industry will have state-specific rules and the regulatory process that will play out over years will require local lawyers with local ties. Other areas may not require locally based attorneys, such as financing and other business issues, Clearfield said.
For Sacks, he envisions legal work stemming from applications to get a medical marijuana license to zoning fights between counties regarding where the dispensaries will be located. “It will be a very large industry,” Sacks said. The question is whether lawyers will feel comfortable taking a piece of that pie.