Attorneys discuss pros, cons of med. marijuana
Medical marijuana is coming to Arkansas, and with it a thicket of regulations those venturing into the state’s newest industry will have to negotiate.
Attorneys will be needed to traverse the difficult terrain, a panel discussing the implications of the Arkansas Medical Marijuana Amendment of 2016 said Thursday during the Arkansas Bar Association’s annual meeting at the Hot Springs Convention Center.
Arkansas is the first Southern state to legal-
ize marijuana for medical use. The state is expected to begin accepting applications for licenses to sell and grow the drug next month.
“As lawyers, it’s an enormous opportunity,” said state Sen. Jeremy Hutchinson, R-District 33, of Benton, the chair of the Senate Judiciary Committee. “There’s going to be a lot of issues. There’s going to be lawsuits challenging the awarding of licenses.
“There’s going to be challenges to (licensee’s) qualifications. Once licenses are handed out, licensees are going to have all sorts of tax and regulatory issues.”
Kristin Stankiewicz, a Portland, Ore., attorney representing clients in the cannabis industry, called the area of law governing the emerging industry “dynamic,” with regulations being reinterpreted with each new ruling handed down by the courts. Oregon voters initiated a law legalizing recreational marijuana use for adults in 2014.
“Clients need help navigating what can be sometimes labyrinthine regulations,” she said. “They need attorneys to help them do business. They need help raising money, forming partnerships and operating agreements and finding places to site their facilities.”
Conflicts with federal law are some of the thornier issues for states that have legalized marijuana. The Controlled Substance Act classifies it as a Schedule 1 drug with no accepted medical use, making marijuana illegal under the federal criminal code.
Stankiewicz said states would be wise to heed the August 2013 memo then Deputy U.S. Attorney General James Cole sent federal prosecutors working in states where marijuana had been made legal. Listing which aspects of the Controlled Substance Act the federal government will enforce relative to marijuana, the memo effectively encouraged those states to adopt robust regulatory schemes.
Among the enforcement priorities listed in the memo are preventing distribution to minors, preventing the involvement of criminal enterprises, isolating the industry from violence and the use of firearms and preventing marijuana from being grown on public lands or used on federal property.
While Arkansas law proceeding from the Medical Marijuana Amendment allows marijuana seeds, seed leaves and clones to be transported across state lines, the practice is illegal under federal law. Stankiewicz said she encourages clients to restrict their supply chains to inside the state.
“I personally never would advise a client to bring plants from outside the state,” she said. “One of the priorities of the Cole Memorandum is to prevent marijuana from being transported across state lines. I’m sure there’s plants in Arkansas. It probably would be safer.”
Attorneys must also tread carefully, said Michael Harmon, deputy director for the administrative office of the court’s committee on professional conduct. The rules governing attorneys prohibit them from advising clients to engage in illegal activity, which marijuana cultivation and dispensing qualifies as under federal law.
He said the state Supreme
Court denied the bar association’s proposal to amend the rules of professional conduct by creating an exemption for medical marijuana. Without that protection, Harmon said clients should be expressly warned that the activity is illegal under federal law.
“For protection against ethical and disciplinary sanctions, you should advise your client and make sure it’s in writing that you’ve advised them that it is in violation of federal law,”
he said. “If you don’t, it’s your word against theirs.”
Hutchinson said he opposed the ballot measure voters enacted in November to amend the state Constitution to make the regulated medical use of marijuana legal under state law. But now that it is law, he said he can’t help but be intrigued.
It passed by a 585,030-516,525 margin statewide and 21,32419,254 in Garland County. A measure for a citizen-initiated act to make medical marijuana legal was on the ballot in 2012
but failed 537,898-507,757.
“I don’t know if I’ve changed my mind about the merits of medical marijuana, but I’m excited,” Hutchinson said. “I’m excited intellectually as a legislator and a lawyer, as well. We are creating a brand-new industry. That’s stimulating, just intellectually.
“As attorneys, we have to make sure the industry is regulated well, and that the case law that’s developed is done well and that our clients are protected.”