A New Frontier

Weed Law. Yes, ladies and gentlemen, WEED. Certainly, many who have some seniority in the legal world never imagined that marijuana would be legalized, generating a whole new area of practice in our profession. What’s next? Weed law hypos on the State Bar exam? “Mary Jane wanted to open a cannabis dispensary…” It’s exciting; it’s somewhat taboo. It is a new frontier for lawyers, especially those who practice in areas where the law does not change much, if at all. Cannabis law is changing with the wind.

This issue of the Contra Costa Lawyer contains articles which are certain to grab your attention, all of which cast Mary Jane as the main protagonist.

Read Lisa J. Mendes’ article “Not Your Average Stoner,” to understand how the face of cannabis, whether a cannabis business or consumer, is changing. Lawyers who practice in this area know first hand that clients are, for the most part, average business persons and individuals, not necessarily your stereotypical stoner next door.

Daniel Leahy wrote an article on cannabis licensing in California, which is at top of mind for many entrepreneurs. Joseph Tully’s article discusses individuals with prior marijuana convictions and how this is being addressed in the criminal justice system. Jeremy Seymour contributed an article on California’s Worker Protection and Tax Laws in the context of the marijuana industry.

Emilie Russell discusses trademark strategies for California marijuana companies in her article, and Ashley Bargenquast tells us what we can, and cannot do in her article addressing what is now permitted use/consumption of marijuana for individuals in California.

Finally, Hilary Bricken lends her expertise in cannabis law by addressing the changed status of the Cole Memo. As you are likely aware, both medicinal and adult adult-use cannabis are still illegal under federal law, and marijuana remains a Schedule I drug under the Controlled Substance Act.

Recently, the Cole Memo was revoked. This generates a high level of uncertainty, leaving marijuana businesses owners in California scratching and shaking their heads. Lawyers are also left to concerned curiosity as to what this means for their practice in this area of law.

Lawyers in the cannabis industry are now dancing between zealous advocacy for their clients and navigating the practice of law in a world where federal and California laws are in direct conflict.

Should lawyers be concerned about continuing to assist clients within this industry?

The bar associations in Los Angeles and San Francisco, as well as the Judicial Council Advisory on Judicial Ethics, have issued opinions with respect to providing legal services to a marijuana business. The State Bar of California lists the aforementioned opinions, as well as opinions from other states, on its website, assumedly to provide some guidance. However, the State Bar of California has not issued any formal opinion to put the legal community at ease.

While this published guidance is helpful, it does not provide the same sense of protection and security for lawyers as there would be if there was a formal opinion issued by the Bar.

Now that marijuana is legal in California, more and more clients within the industry will need assistance. Much of this assistance is related to making sure marijuana businesses are compliant with current California laws. However, as alluded to herein above, lawyers may be hesitant to assist these businesses, especially considering the fact that the Cole Memo has been revoked, if there is not a formal opinion they can look to for guidance. Unfortunately, that could lead to less compliance by those in the marijuana industry, and a whole community of underserved individuals and businesses within the marijuana industry.

As we move forward into a new and quickly changing industry and area of law, it will be important for marijuana businesses and individual users and non-users alike to have legal counsel to help them navigate the laws.

We hope you enjoy this issue of the Contra Costa Lawyer. We enjoyed being the guest editors, and we look forward to seeing how this area of law continues to evolve.

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