There’s a lot that must happen between passing a law and passing Alaska’s first legal marijuana joint.
A lawyer’s relationship with marijuana will likely change with the passage of Ballot Measure 2 by voters in November, which as of Feb. 24 legalizes the use of marijuana with commercial sale to follow once a regulatory system is in place.
That means for attorneys like Juneau’s Kevin Higgins, the legal landscape is changing.
“In the past, I’ve assisted clients who are charged with criminal or juvenile offenses related to possession, possession with intent to deliver, or manufacturing or growing cannabis,” Higgins said.
He doesn’t expect to get many calls quite like that in the future. Instead, it seems marijuana-related calls will be focused more on business.
“Since the initiative has passed, I’ve fielded a number of calls from people who are just curious about what it means and what business opportunities might be on the horizon,” Higgins said.
So far, he said, it’s difficult to offer any advice aside from: “It’s unknown, but even if it was known it would still be risky,” since marijuana is still illegal under federal law, there is still uncertainty about regulation at the state level, and municipalities may enact further regulations.
Removing some of the uncertainty, the Alaska Bar Association ethics committee released an informal preliminary analysis of ethics pertaining to the decriminalization of recreational use and distribution of marijuana in Alaska. It addresses issues like a lawyer’s personal use of marijuana, advising clients on the new law and the role lawyers may play in a marijuana industry.
“My understanding is that it will be quite a bit of time before stores actually open and growers actually grow marijuana,” Bar Counsel Steve Van Goor said. “The (Alaska) Bar Association is trying to get ahead of the curve.”
The preliminary analysis is an early step toward proposing a change to the professional rules of conduct, which must be presented by the ABA’s Board of Governors to the Alaska Supreme Court for approval.
The proposal will be presented at the next ABA meeting at the end of January, Van Goor confirmed.
“The rule will come back before the Board of Governors for final consideration,” he said.
The board will consider comments and decide whether to forward the rule proposal to the Alaska Supreme Court. Once forwarded, it would be scheduled on the rules calendar for consideration by Alaska’s highest court.
The whole process would result in a rule change effective around October, likely coinciding with the conclusion of the nine-month rulemaking process laid out by the ballot measure. The law will take effect 90 days after the election was certified, officially Feb. 25, 2015.
Alaska isn’t the first state to decriminalize marijuana and Van Goor said the ABA will likely “go in the same direction” as Colorado and Washington.
Regarding personal use, nothing’s changed, the document states.
“Since the Ravin decision in 1975, adult Alaskans have had a constitutional right to smoke marijuana in at least some circumstances,” the document reads, though it remains a federal crime.
Though the Alaska Rules of Professional Conduct advises lawyers to conform to the requirements of the law when conducting personal affairs, rule 8.4(b) says it’s professional misconduct only when “the act reflects adversely on the lawyer’s honesty, trustworthiness of fitness as a lawyer.”
No Alaska lawyer has been disciplined for “discrete and private use” of marijuana.
When it comes to advising a client on the parameters of the new law, an ethical dilemma does arise since marijuana is still illegal at the federal level. Other states have dealt with the issue and concluded “it is not unethical for an attorney to advise a client how to comply with the new state law, so long as the attorney also advises that the conduct remains illegal under federal law.”
The same logic could be applied to advising a state or local governmental body, the document suggests.
The third issue addressed by the ethics committee was a lawyer’s role assisting with a marijuana business.
The committee asks: “If it is presumptively ethical to advise a client how to operate a business that complies with Alaska law, can the lawyer take the next step and assist in the development of the business by drafting the LLC paperwork? Could the lawyer assist by investing financially in the business or taking a turn at the store’s counter on a weekend away from the law office?”
The committee claims the line between giving advice and actually drafting the documents “is very gray” and shies away from drawing “a principled line.” An Alaska lawyer “probably could” ethically provide legal services to a business legal under Alaska law in the same way as any other legal business, but deeper involvement gets into murky territory.
The committee suggests lawyers “exercise caution and not become directly involved in operating a business that remains illegal under federal law.”
Higgins believes the role lawyers will play will be “very traditional.”
He said services might include: “Advising on organizational structure, assisting with the licensing process, assisting in the development of workplace policies for employees, ensuring compliance with other state and local requirements such as workers compensation insurance, providing health insurance if required under Obamacare, complying with whatever reporting requirements are developed through the regulation process, developing processes for strict compliance with product development, testing, and tracking regulations, complying with tax law, etc., etc. The list really does go on and on.”
The law as it was passed leaves a lot still to be determined by state and local government entities (under the ballot initiative communities have the right to ban marijuana sales) and Higgins said he hopes to see a “measured approach that is equal parts pro-business and pro-health and education.”
On the business end, Higgins fears an over-burdened industry won’t be able to compete with the underground market.
“The effective federal tax rate and banking regulations already make it difficult for business to succeed compared to other state-sanctioned businesses,” Higgins said. “State policies that pile on top of that will absolutely push small operators out of the market.”
On the education side, he’d like to see honest education on products and real risks or benefits identified.
“The election revealed there are people who still have, to varying degrees, lingering fears of reefer madness; there’s a large portion of the population who is indifferent; and there are also varying degrees of enthusiasts,” Higgins said. “Generations of prohibition have not created an environment conducive to honest discussion based on scientific data.”
Higgins said he’s working to educate himself — he spent a half day in continuing legal education classes related to marijuana law last week — and talking to people about the issues.
“For my part, I’m trying to make sure that I understand as many of the issues at play that I can, so I can have an informed voice in the legislative, administrative and local level,” he said.
Editor’s note: This article and its contents are not legal advice. The ethics committee document is not an expression of the views of the Alaska Bar Association Board of Governors or the Alaska Supreme Court, and the opinions Higgins has expressed are his own.
Correction: Higgins spent a half-day on marijuana law of two days of continuing legal education.