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Practicing in Marijuana Law Remains a Risky Bet

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By Casey C. Sullivan, Esq. on September 01, 2015 3:57 PM

Think your future is in weed law? Twenty-three states and D.C. have laws allowing for medical marijuana. Washington, Colorado, Oregon, and Alaska have legalized recreational weed, and California is expected to join them next year. All those growers, distributors, and vendors need lawyers and if the end of marijuana prohibition is approaching, enterprising lawyers will want to be on the ground floor.

There's one major complication. Marijuana remains illegal in the federal government's eyes. Lawyers who advise clients in the marijuana industry could theoretically face sanctions, even disbarment. As a recent interview with the managing partner of a BigLaw firm with a growing marijuana practice reminds us -- weed law is far from a sure thing.

From Unethical to Illegal

Practicing in the marijuana industry could make you a felon. At least, that's one possible outcome, according to Mark Silow, a managing partner at Fox Rothschild. Silow says that in marijuana law practice, "you're advising clients on business matters that, although they may comply with state law, could very well be felonies under federal and could make you arguably a co-conspirator." Silow recently sat down for a video interview with Bloomberg to discuss the firm's growing weed practice.

Silow acknowledges that lawyers advising clients in the marijuana industry are in a complicated position. The advice lawyers give clients might be valid under state laws, but contrary to federal rules and policy. That raises questions about the validity of the legal representation as well as attorneys' ethical obligations to refrain from assisting clients in breaking the law.

Risks and Rewards

Of course, these concerns aren't exactly revelations. Several state bars have been acting to clarify the role of lawyers in the semi-legal marijuana industry. The Colorado Supreme Court ruled last year that Rocky Mountain attorneys were free to advise marijuana businesses. The Washington State Bar Association went even further, deciding in July that lawyers could own and operate marijuana businesses themselves, without violating their professional obligations.

But, while the federal government has taken a hands off approach to state legalization, that could all change in the future. So long as marijuana remains a Schedule I drug under the Controlled Substances Act, marijuana lawyers will need to tread carefully.

Those risks haven't scared off Fox Rothschild, however. The firm continues to grow its marijuana practice and BigLaw is increasingly moving into the marijuana space, according to Bloomberg. There's still plenty of room for small and boutique practices, however.

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