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Friday, November 08, 2013

Great jobs for green lawyers in the new green ganja legal world(?)

The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules."  Here are a few excerpts from this article:

The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic.  It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use.  A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.

“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”

Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes.  And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.

“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”

Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization.  Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....

Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.

Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....

Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.

This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting.  That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.

In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.

My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry.  I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business.  Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.

But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries.  Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?

Cross-posted at Marijuana Law, Policy and Reform

Posted by Douglas A. Berman on November 8, 2013 at 09:58 AM in Employment and Labor Law, Life of Law Schools, Teaching Law | Permalink

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Do you think lawyers who work on criminal defense are necessarily stigmatized by the people they represent? Among some quarters, perhaps; but I’d think many people understand there’s a difference between providing legal advice to someone else who’s breaking a law and breaking the law oneself. In any event, I think the stigma associated with breaking federal marijuana law is probably fading, especially in states that have legalized it. So I’m skeptical there’s much reputation hit lawyers would take for representing marijuana dealers and users who are trying to comply with state laws.
Some states have wrestled with the ethical issues raised by such representation (given the tension between state and federal law), which is, perhaps, a bigger concern. http://www.huffingtonpost.com/2013/11/05/colorado-washington-marijuana_n_4221386.html
But I suspect a careful lawyer can provide advice to marijuana dealers without running afoul of ethics rules.

Posted by: Rob Mikos | Nov 8, 2013 1:53:04 PM

I'm a seniorish lawyer at a firm with a decent-sized Denver office. I know there have been *substantial* discussions about whether and how we want to be involved in the industry. I have heard through secondhand sources that similar talks are going on at most of the major Denver firms. From what I hear within my firm and others, the majority (though not consensus) view is that there is no problem with taking the deal and regulatory work. I've heard the gaming industry analogy used multiple times. I know of one firm that has already done real estate transactions for agribusiness. I know of another that has represented medical professionals in licensing actions.

Bottom line. The idea that big firms haven't thought about this and already taken steps is hopelessly naive.

Posted by: Someone who knows | Nov 8, 2013 8:42:52 PM

My point, someone, is not that big firms have not thought about this, but rather that there may be sound reasons some big firms will not be eager to represent smaller players in this developing industry. Indeed, your comment itself suggests some folks inside firms are chary about taking on this work. And in the 18 states with only medical marijuana legal, the debate may be ever more dynamic.

I am pleased to hear Denver firms are getting involved, and that confirms my belief/hope that junior lawyers can and should seek to work in this emerging field.

Posted by: Doug B. | Nov 8, 2013 8:55:33 PM

That doesn't make sense. There were big law firms that refused to do tobacco defense work. Big tobacco didn't hire junior solos or small firm lawyers; it hired Jones Day. The question is not whether some Denver (or Washington) firms will turn away marijuana work. It's whether enough will to result in an unmet need. From what I've heard from within and without my firm, that's highly unlikely to be the case.

Posted by: Someone who knows | Nov 8, 2013 9:10:36 PM

I am not saying, Someone, that "big marijuana" should will not be able to find expensive lawyers to take their cases. But the current marijuana representational realities are so very distinct from big tobacco (or big gambling or big alcohol) right now, in at least 3 critically important ways:
(1) there are no "big marijuana" clients right now, just lots of "little marijuana" clients in 20+ states, all of whom could benefit from tax and regulatory advice;
(2) any/all marijuana transactions are right now violations of federal law, which is why federally insured banks and others subject to federal regulation will not yet service this only-state-legal industry;
(3) lawyers who take marijuana profits as fees arguably (though unlikely) could be subject to federal prosecution for money laundering and/or could have those fees seized

Please understand, Someone, that my point here is NOT that experienced lawyers should shy away from this business nor it is an assertion that they will. I sincerely hope that you and other legal veterans get very involved in representing this industry --- indeed, such involvement by established lawyers will help add legitimacy (and lobby muscle) to this industry. My point is only that the current realities of this developing industry --- perhaps much more so in states like California and Michigan with a (too?) big medical marijuana industry than in Colorado or Washington with a recreation structure developing --- may make it the kind of industry that junior lawyers could more readily develop a "book" within.

Again, I am very pleased to hear that "Someone who knows" is reporting that there is unlikely to be unmet legal needs here. But that may only be the case in two states now, and the fact that one (unidentified) lawyer is saying there is a willingness by some to take this business is not evidence that all potential clients have access to all the legal help they might need.

In addition to being grateful for your engagement, Someone, I hope you and/or other lawyers starting to service this industry will contact me directly to provide those in the ivory tower a better sense of what law schools might do to better train future lawyers for this business. Thanks to my seminar, I know I have 15 or so lawyers-in-training who likely know the national law and policy developments here better than most others already in the profession, and I am certain they would love to here about the professional potential that you and others are now seeing from the ground.

Posted by: Doug B. | Nov 9, 2013 9:51:45 AM

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