{"id":7903,"date":"2017-12-04T20:08:35","date_gmt":"2017-12-04T20:08:35","guid":{"rendered":"http:\/\/www.denverpost.com?p=2878003&amp;preview_id=2878003"},"modified":"2017-12-04T20:08:35","modified_gmt":"2017-12-04T20:08:35","slug":"lawyers-who-work-with-marijuana-business-clients-endanger-own-practices","status":"publish","type":"post","link":"https:\/\/cannitrol.com\/blog\/lawyers-who-work-with-marijuana-business-clients-endanger-own-practices\/","title":{"rendered":"Lawyers who work with marijuana business clients endanger own practices"},"content":{"rendered":"<div id=\"wp_fb_like_button\" style=\"margin:5px 0 5px 5px;float:right;height:100px;\"><script src=\"http:\/\/connect.facebook.net\/en_US\/all.js#xfbml=1\"><\/script><fb:like href=\"https:\/\/cannitrol.com\/blog\/lawyers-who-work-with-marijuana-business-clients-endanger-own-practices\/\" send=\"true\" layout=\"standard\" width=\"450\" show_faces=\"false\" font=\"arial\" action=\"like\" colorscheme=\"light\"><\/fb:like><\/div><div class=\"media_block\"><\/div>\n<div class=\"row\">\n<div class=\"large-10 large-centered small-12 columns\">\n<div class=\"entry-meta-date\">Published: Dec 4, 2017, 11:49 am \u2022 Updated: Dec 4, 2017, 11:52 am<span class=\"single-comments-link\" \/><\/div>\n<p class=\"byline\">By <strong>Brian Melley<\/strong>, <em> The Associated Press<\/em><\/p>\n<p>LOS ANGELES \u2014 Just as entrepreneurs getting into the retail pot industry need a good lawyer, some of those lawyers might be wise to consult an attorney of their own.<\/p>\n<p>Lawyers in the burgeoning business are entering a legal gray zone where the drug is permitted for some purpose in most states but <a href=\"http:\/\/www.thecannabist.co\/2017\/07\/25\/marijuana-schedule-i-lawsuit-unconstitutional\/84473\/\">illegal under federal law<\/a> \u2014 in the same controlled substances category as heroin. Missteps could lead to prosecution for conspiracy, money laundering or aiding and abetting drug dealers.<\/p>\n<p>\u201cAny lawyer that goes into this should be aware that a literal reading of federal law permits such a prosecution,\u201d said Sam Kamin, a University of Denver marijuana policy law professor, whose research five years ago found lawyers more susceptible to being disbarred than criminally charged for cannabis-related work. \u201cIt probably makes sense for a lawyer to at least talk to a legal ethicist or get an opinion from a legal ethicist.\u201d<\/p>\n<p>Attorney General Jeff <a href=\"http:\/\/www.thecannabist.co\/2017\/11\/29\/sessions-marijuana-enforcement-cole-memo\/93540\/\">Sessions reiterated his opposition to legal weed on Wednesday<\/a>, and a congressional amendment prohibiting federal prosecutors from targeting medical marijuana is <a href=\"http:\/\/www.thecannabist.co\/2017\/11\/29\/66-congress-letter-rohrabacher-blumenauer-medical-marijuana-states\/93538\/\">due to expire at the end of the year<\/a>.<\/p>\n<p>Sessions has <a href=\"http:\/\/www.thecannabist.co\/2017\/10\/26\/hugh-hewitt-marijuana-jeff-sessions-prosecution\/90962\/\">not said if he will reverse a longstanding Justice Department policy<\/a> not to interfere with purveyors complying with state laws but to focus prosecutions on trafficking, sales to minors, cartels and gangs in the business, violence or gun use in cultivation or distribution, and pot grown on public land.<\/p>\n<p>Despite a few instances of lawyers being prosecuted in federal and state court \u2014 including a pending San Diego County case \u2014 more attorneys are jumping into cannabis law. Legal needs range from financing to permits, real estate, water law, intellectual property, contracts and banking.<\/p>\n<p>With California allowing recreational pot retail sales Jan. 1, interested investors are reaching out to attorneys like Mitch Kulick to find out how to safely finance the potentially lucrative industry.<\/p>\n<p>Kulick, a New York lawyer who offers his expertise in many states, recently gave his typical scare spiel to a real estate magnate about the possible legal consequences, and said he could only help mitigate risk so much.<\/p>\n<p>\u201cAt a certain point, you have to realize this is against the law. There\u2019s no insurance policy to take away the risk,\u201d Kulick said he told the man. \u201cIf I was already a billionaire, I might not be taking the risk.\u201d<\/p>\n<p>Kulick, who once worked as a lawyer for the Securities and Exchange Commission and a major international firm, had to do a similar risk analysis and soul searching before deciding to commit to the higher cause, so to speak.<\/p>\n<p>There has been a tipping point for many lawyers setting up boutique pot law firms and jumping from old-school law firms as demand for their services trumps fear of legal repercussions and the stoner stigma fades as more states legalize marijuana use.<\/p>\n<p>Attorney Chris Davis, who grew up in Berkeley around friends and family who use the drug, found people operating in the shadows who wanted to go legit when he returned to California from New York two years ago.<\/p>\n<p>\u201cSo many people were asking how to go legal and how to worry less,\u201d said Davis, executive director of the National Cannabis Bar Association, which has about 300 members in the U.S. and Canada and is growing rapidly. \u201cIt became impossible to turn people away.\u201d<\/p>\n<p>Lawyers specializing in the business see themselves at the frontier. That leaves a fascinating opportunity to shape laws and regulations and the daunting prospect of the unknown.<\/p>\n<p>\u201cLawyers like things to be settled,\u201d Davis said. \u201cIt\u2019s hard to get a lawyer to give you a yes or no answer. In the cannabis industry, there really is no yes or no answer.\u201d<\/p>\n<p>Some state bar associations have given lawyers cover to counsel marijuana clients within the bounds of state law. Others say federal law keeps the area off-limits because ethical rules prevent them from helping clients commit crimes.<\/p>\n<p>Attorney Larry Donahue had several medical marijuana clients at his firm in Albuquerque, New Mexico, until the state bar issued a January 2016 opinion that said lawyers could be exposed to ethics charges for such work. Donahue had to terminate four or five clients.<\/p>\n<p>\u201cIt was a very chilling opinion,\u201d he said. \u201cIt basically scared the hell out of us.\u201d<\/p>\n<p>While prosecutions of attorneys are rare, a case in San Diego has gotten the attention of many lawyers, mainly because of aggressive tactics employed by the district attorney.<\/p>\n<p>Attorney Jessica McElfresh was charged with several felonies alleging she helped a client hide evidence of marijuana manufacturing.<\/p>\n<p>The case might have received less notice if prosecutors didn\u2019t unsuccessfully try to get around the sacrosanct lawyer-client privilege and seek communications with all her marijuana clients.<\/p>\n<p>McElfresh, who vehemently denies the charges, said she knew specializing in pot law carried risks, but she couldn\u2019t foresee \u201cin a million years\u201d police raiding her house. She and her boyfriend and mother were escorted into her backyard, where she was handcuffed barefoot in her pajamas during the search.<\/p>\n<p>She said she didn\u2019t take the risks some lawyers do by sitting on the boards of a client\u2019s company, owning a share in a business or introducing clients to one another.<\/p>\n<p>\u201cI am one of the most conservative and boring people you would ever meet in cannabis law,\u201d she said. \u201cThe only way I could have been more careful would have been not to engage in this area of law at all.\u201d<\/p>\n<p>A new district attorney took office after McElfresh was charged and allowed five co-defendants facing similar charges to plead guilty last month to misdemeanors and get probation.<\/p>\n<p>The San Diego district attorney\u2019s office wouldn\u2019t comment, but in a statement cited the recreational pot law passed by voters last year and the new administration\u2019s \u201cchanging focus\u201d as part of the reason for the plea deals. It\u2019s not clear if that change will affect McElfresh\u2019s pending case.<\/p>\n<\/p><\/div>\n<\/p><\/div>\n<p><!-- .row --> <\/p>\n","protected":false},"excerpt":{"rendered":"<div class=\"media_block\"><\/div>\n<p>Lawyers taking clients from the burgeoning cannabis industry could face prosecution for conspiracy, money laundering or aiding and abetting drug dealers. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[6811,6964,6813,77,5577,5667,56,9,5019,1,3,61,1736],"tags":[6816,6967,6818,2655,5580,5673,2636,5022],"_links":{"self":[{"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/posts\/7903"}],"collection":[{"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/comments?post=7903"}],"version-history":[{"count":0,"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/posts\/7903\/revisions"}],"wp:attachment":[{"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/media?parent=7903"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/categories?post=7903"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cannitrol.com\/blog\/wp-json\/wp\/v2\/tags?post=7903"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}