A Jacksonville lawyer had a unique idea to capitalize on the recent growth of cannabis law. For the relatively low cost of $800, he issued “certificates” to his clients and “grow signs” they could put up advertising that medical marijuana was grown here. If police asked questions, he told his clients, show them the card. Once you show medical need you won’t be arrested.
It got him some money and a few clients. It didn’t work entirely as planned, unfortunately, due mainly because he did this in 2015 and Florida hadn’t yet made medical marijuana legal.
As far as bad legal advice goes, it’s a doozy. While Florida has since legalized medical marijuana, that is of little comfort to two of his clients who received three-year probation sentence, one of whom also lost her nursing license.
The now criminally convicted clients sued their attorney in 2016 – the same year Florida voters approved making medical marijuana legal. Last week a district court judge issued a judgment against the former attorney (he has lost his license to practice) for $369,942.30.
Interpreting the Law Isn’t Making the Law
The lawyer apparently based this part of his practice on a medical necessity standard upheld by the Florida Supreme Court, which occurred prior to 2015. However, that defense could only be used after arrest, not before, as the lawyer maintained. That case also arose from unique circumstances. Regardless, the fact that Florida residents were still being arrested for marijuana distribution and possession, even if they claimed medical need, should have given him pause from promising safety to his clients.
Cannabis Law Is Still Complex
Putting flat-out incorrect advice aside, helping clients looking to start or expand a cannabis business in a state that has legalized it can still be tricky. Several states have issued opinions about the ethics of taking clients on in this area of the law. While Model Rule 1.2(d) is not necessarily intended for situations in which state and federal law conflict, state bars have issued ethics opinions that no violations occur for attorneys representing clients in the cannabis industry. They do advise, however, that attorneys should tell clients that they may be in violation of the Controlled Substances Act.
Other areas of the law can get attorneys into trouble, as well. For example, one Colorado lawyer was censured for failing to disclose that bank accounts he opened in Colorado were connected to marijuana dispensaries. Banks typically do not allow deposits from marijuana dispensaries.
It is a highly regulated industry, and attorneys who undertake to represent clients in this area of the law must ensure they are advising clients of all applicable state and federal laws, some of which are in conflict.
What you don’t want to do is charge $800 for a fake medical marijuana card.
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