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4 Things Lawyers Need to Know About Marijuana Legalization

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By Casey C. Sullivan, Esq. on November 15, 2016 10:07 AM

The big winner this election cycle wasn't just Donald Trump. It was recreational, legalized marijuana. (Okay, sort of legalized. The federal government, of course, continues to classify marijuana as an illegal drug. More on that in a minute.) Voters in California, Massachusetts, Nevada, and possibly Maine all voted to legalize recreational marijuana use. That means that now one out of every five Americans lives in a state where recreational weed is legal or is about to become legal.

So, what's that mean to you as a lawyer?

1. Legal Weed Could Be Coming to Your State Next

First, if you're not a lawyer in a state that doesn't have legalized, recreational marijuana, you should still pay attention to the results. The success of marijuana legalization ballot measures, coupled with the expansion of medical marijuana to Florida, continues a trend towards ending marijuana prohibition on the state level. What happens in Colorado or California could one day happen in Connecticut or Kansas.

2. Ethical Issues Still Remain

The current legalization trend is tenuous, however. That's because the federal government still classifies marijuana as a Schedule I drug under the Controlled Substances Act, alongside heroin and LSD. That has significant implications for lawyers who want to advise marijuana businesses or use marijuana themselves, given the prohibition on lawyers engaging in or counseling clients to engage in illegal activity.

Several state bars have addressed this conflict directly. Colorado, for example, has amended its rules of professional conduct to allow lawyers to counsel legal marijuana businesses and users. A 2010 ethics opinion on medical marijuana in Maine, however, was much more circumspect. (Maine is currently revisiting that opinion.)

So, wherever you are working, be sure to do your own research into marijuana legalization's professional implications before opening a boutique marijuana law practice or heading to the nearest dispensary.

3. Remember, Marijuana Business Isn't Normal Business

The unique split between federal and state law creates plenty of legal questions for marijuana business operators and their lawyers. If you're interested in growing a marijuana practice, you'll need to be hyper-aware of these differences. For example, marijuana businesses are unlikely to be able to declare bankruptcy should they fail. They can't register their trademarks with the USPTO. Even opening a bank account can pose major legal problems. Local ordinances, zoning laws, and regulations add another layer of complexity. Lawyers interested in this growing area of law need to start brushing up on some of its more complicated and cumbersome aspects.

4. Can Your Paralegal Bring Her Bong to Work?

Finally, what does legalization mean to you as an employer? Will your interns start showing up stoned? Will your legal secretary have edibles as his afternoon snack? Hopefully not. And if it happens, you'll have all the same resources as before. Every new state legalization measure states explicitly that it does not impact an employer's right to maintain a drug free workplace.

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