Oregon State Bar Bulletin JUNE 2014
Despite Washington’s legalization of medical marijuana in 1998, and little fanfare or confusion among the state’s legal community following its passage, a drastically different response ensued with the 2012 legalization of pot for adult recreational use.
“What took Washington’s legal community by surprise was the sudden intense scrutiny of legal ethics issues that cropped up,” says Doug Ende, director of the Washington State Bar Association’s Office of Disciplinary Counsel. “We’ve had medical marijuana on the statutes for 15 years and no one gave legal ethics a thought or requested an ethics opinion.
“I think the difference is that the medical marijuana industry has always been a very small player economically. It started as a cottage industry and stayed at that low level of economic intensity,” Ende says. “As soon as recreational marijuana passed, there was intense interest and scrutiny. When one creates a potential multibillion dollar industry out of nowhere overnight, the interest and anxiety about it skyrockets. That was our experience.”
With a ballot measure legalizing recreational pot anticipated to appear on the November ballot in Oregon, leaders of the legal communities in Washington and Colorado are advising a proactive approach to an issue with myriad implications for attorneys, judges and other legal professionals here.
Ende says that, like Washington, Oregon has long-standing medical marijuana statutes that also were enacted in 1998. The legal ethics issues that arise under a recreational marijuana law differ little from those that would be considered under a medical marijuana statute, he says, noting lawyers contemplating whether to represent businesses that sell marijuana face the same ethical considerations for both recreational and medical pot.
In Washington’s case, legalization of recreational pot initiated a flurry of organizations calling for changes to Washington’s rules of professional conduct to accommodate attorneys’ representation of clients involved in the burgeoning industry.
“My recommendation to the Oregon bar and the Oregon judiciary is to get out ahead of that before they find themselves with a statute on the books and lawyers and legal organizations crying out for more guidance about changes in the law,” Ende says. “It’s not something you want to do in a hurried way but with studied thought, particularly about the difference in state and federal laws regarding controlled substances.”
He adds that Oregon is in a good position to examine what laws and rules should be in place for attorneys who want to represent businesses that are involved in the marijuana industry.
“If we had realized this would become such a legal ethics crisis in such a hurry, we might have done things differently to be more prepared,” Ende says.
DUIIs, Edible Products Among Chief Concerns
Colorado had a similar experience prior to legalizing recreational pot use in 2012. It had legalized medical use in 2000, and the state’s judiciary provided guidance about how attorneys should work within the newly established legal framework to represent dispensaries, says Jim Coyle, head of the Colorado Supreme Court’s Office of Attorney Regulation Counsel.
“We had no problems with medical marijuana, and our office never disciplined someone for representing a medical marijuana dispensary,” he says. “When we went to recreational marijuana, certainly the interest increased dramatically. People realized there was a lot of money to be made and lawyers could participate or not.”
Many Colorado attorneys recognized that in order to have a system that regulated the industry well, it made sense to be involved in crafting the system. As the Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct sought to assure attorneys that representing pot-related businesses was within their rights, it proposed two new rules, one of which Coyle believed to be too broad.
“My concern was that it almost gave blanket protection for anyone representing the marijuana industry, and it could potentially be used in the defense of a complaint about competent representation,” he says.
The Colorado Supreme Court ultimately went with a comment that was respectful of federal authority while addressing the rules issue and providing guidance to attorneys.
“While not all lawyers are happy, those lawyers who are already representing the industry are grateful for it and others have the guidance to make an informed choice,” Coyle says.
Among the many issues Colorado has had to address with the legalization of recreational pot is how to treat lawyers who use it themselves.
“Our position has always been that we don’t want to get into lawyers’ personal lives to such an extent,” Coyle says, adding the Office of Attorney Regulation Counsel would get involved if an attorney’s use of marijuana constituted a criminal act and impacted his or her professional competence, diligence, communication with clients or other responsibilities.
Colorado and Washington, and other states considering the legalization of recreational pot, also are exploring ways to improve DUII laws as they pertain to driving under the influence of marijuana. As it stands, only a urine test is available for this purpose. However, pot can stay in a person’s system for up to 30 days, so a positive result on the DUII test doesn’t necessarily mean a driver was under the influence at the time he or she was pulled over.
“None of us really have a great answer to that, so we’re all kind of wondering what’s going to happen,” Coyle says. “We’re all watching it closely and we’re all concerned that this doesn’t affect Colorado adversely. We’ve been pleasantly reassured that there haven’t been any upticks in crime, but certainly anyone who gets behind the wheel of a car needs to be sober.”
Another major concern in states that already have legalized recreational pot and those considering it is the regulation of edible products made with marijuana. This issue gained national attention in March when a Wyoming college student either jumped or fell to his death after eating a toxic amount of a pot-infused cookie while on spring break in Denver.
Many Take a Wait-and-see Attitude
District attorneys across Oregon have plenty of concerns as the potential for legalized recreational pot hangs in the balance with the November ballot. Coos County District Attorney Paul Frasier, president of the Oregon District Attorneys Association, says his organization is closely watching Washington, where DUII cases involving marijuana-intoxicated drivers have steadily increased.
“I think there is a concern that we’re going to see more DUIIs where marijuana is the intoxicant,” he says. “That being the case, most D.A.s’ offices are stretched as it is and if we get an influx in these types of cases, that is going to add to our caseload. The big question is how much of a drain on resources that is going to have on prosecutors’ offices.”
Frasier notes that public defender offices must be prepared because many of the accused drivers will need indigent defense. The Oregon State Police Forensic Services Division, which conducts all DUII testing, also has voiced concern about the additional burden marijuana-related cases might place on its staff and resources, he says.
At this point, however, the district attorneys’ organization is taking a wait-and-see attitude because its members simply don’t have the financial resources to spend on something that may or may not come to pass.
“We’re kind of holding our breath to see whether it passes or not and we’ll go from there. I suspect if it does pass, there will be some requests to change drug recognition evaluations for DUIIs,” he says.
While urine samples are not as effective as blood samples for pot-related DUII cases, blood samples are more costly and involve more privacy issues. In addition, the state police crime lab does not conduct the type of blood tests that would be required for marijuana-related DUII cases, Frasier says.
He also is concerned about the ripple effect that the legalization of recreational marijuana use may have on families. While he has an attorney assigned to handle child dependency cases where children are in a bad situation and the state needs to step in, Frasier worries about the growing number of kids in foster care and whether marijuana will become more available for children.
Frasier adds that he hopes a vote on the legalization of recreational pot use will be a slow, thoughtful process.
“From our perspective, if there is an initiative we hope it will be defeated. What’s the hurry? Let’s let this experiment in Washington and Colorado play out over a couple of years and see the issues they encounter and how they solve them,” Frasier says. “If we’re going to make a decision, let’s at least make an informed decision.”
Criminal defense lawyers also can learn much from the legalization process in Washington and Colorado, says John Henry Hingson III of Oregon City, former president of the Oregon Criminal Defense Lawyers Association.
“Oregon lawyers need to look to Colorado and Washington to familiarize themselves with the bumps in the road they experienced from both the prosecution and defense standpoints in those states,” he says, adding Oregon lawyers should familiarize themselves with “Scientific Evidence: A Manual for Oregon Defense Attorneys,” a guide authored by Kevin Sali and endorsed by the OCDLA.
“The scientific evidence of marijuana-related prosecutions will ramp up as the number of prosecutions increases,” Hingson says. “We unfortunately face a situation in which the courts let junk science in and the jury is left to figure it all out, and sometimes juries get it wrong. Some people who sit on juries are adamantly opposed to the use of marijuana under any circumstances. Other jurors are adamantly in favor of using marijuana in all circumstances, so this truly is the new prohibition that we’re embarking upon.”
Hingson notes that criminal defense attorneys also should familiarize themselves with the positive effects of marijuana as they prepare to represent people accused of DUII and other drug-related cases.
“We have a whole lot of people who are operating under the beneficial influence of marijuana, and that’s a pretty important key for defense attorneys to be aware of,” he says.
Economic Opportunities Help Propel Debate
While opinions about whether recreational marijuana use should or should not be legalized vary across a wide spectrum, most legal professionals agree that Oregon needs to be prepared for the possibility. Those who have tried to pave the way, however, haven’t necessarily had an easy time of it.
Norm Frink, retired Multnomah County chief deputy district attorney, partnered with Mark McDonnell, who retired as head of the district attorney’s drug unit, to promote a responsible regulatory system for legalized recreational pot. Frink emphasizes that he and McDonnell were not taking a position on legalization, but merely saying that voters should be offered a responsible regulatory system if they choose to legalize recreational pot. Frink candidly admits that he was discouraged by the effort’s results.
“If you try to introduce or discuss a responsible legalization scheme, you are automatically perceived as being pro-legalization,” says Frink. “Since Mark and I are retired, we don’t really have to worry about the politics of it except to be depressed by them. Very few people in the Legislature want to get out front on it because it’s impossible to make people understand that you want to go beyond ‘yes or no’ on legalization.”
Frink says he is disappointed that the legalization issue wasn’t more proactively addressed by the Legislature, and he is concerned that Oregon citizens will vote on a measure that doesn’t include sufficient regulation, oversight, taxation or enforcement.
“Right off the bat, the fact that we don’t have a responsible way for testing and litigating DUII cases ought to give pause to everybody,” he says. “Generally speaking, unless a situation develops where there is actually work on what a responsible legalization scheme would look like, I think law enforcement is going to have to basically wait and see what happens.”
Oregon Senate Judiciary Committee Chair Floyd Prozanski, D-Eugene, crafted SB 1556, which referred the measure to voters. Prozanski says he is focused on the potential economic benefits of legalized recreational pot, which would range from startup businesses to attorneys who would have the opportunity to represent them.
“My whole perspective on this is that this is an industry of incubators and startups, and it’s a golden opportunity for law firms with a niche in business startups to be able to benefit from those relationships,” he says, adding the emerging industry holds significant potential to create new jobs.
Prozanski cautioned Oregon attorneys to be cognizant of the differing federal and state statutes regarding controlled substances. “I would suggest at this point that those who are interested in incubating that kind of business reach out to attorneys in Washington to see how they are handling it,” he says.
He also notes that Oregon business attorneys should educate themselves about U.S. Department of Justice guidelines on the issue, as well as rules related to banking and financial management of marijuana-related operations. As it stands, banks are prohibited from serving customers who are involved in the marijuana industry because of federal regulations regarding money laundering and drug operations.
As the conversation about legalized recreational pot use in Oregon continues, many agencies and legal entities have opted for a wait-and-see attitude, including the attorney general’s office.
“The Oregon Department of Justice has been involved in the formulation of the rules for medical marijuana dispensaries (through general counsel),” Attorney General Ellen Rosenblum said via email. “Some of these rules, or a variation of them, related to dispensaries could potentially become applicable to recreational legalization. Were it to pass; we have drafted the ballot titles for the various legalization measures, and we are staying abreast of what is going on in states that have passed legalization. Since we have no idea what, if any, law will be enacted, we are not in a position to do more at this point to prepare the legal community.”
Others, like Portland attorney Leland Berger, are moving forward with the expectation that voters will legalize recreational pot use in November. The criminal defense lawyer, who has practiced for more than three decades, has established Oregon Cannabusiness Compliance Counsel and is transitioning his practice to represent businesses involved in the marijuana industry. He says he also will continue to represent individuals who are arrested for pot-related offenses, though he expects the number of those cases to decrease dramatically under the potential new law. Berger also expects other Oregon attorneys to reap the rewards of legalized recreational marijuana use.
“I think the lawyers who do OLCC compliance work will have an opportunity to expand their caseloads, and those who advise the craft brewing and wine industries also will see great opportunities for additional legal work in that regard,” he says.
“I know that the medical distribution system that is being implemented now in Oregon has created a need for lawyers who have expertise in business regulations, securities law, tax law and policy, and intellectual property law,” Berger adds. “And I think that next year, when the state’s Department of Agriculture starts issuing licenses for cultivating hemp, we’ll see more opportunities for Oregon attorneys as well.”
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and frequent contributor to the Bulletin. She can be reached at precisionpdx @comcast.net.
© 2014 Melody Finnemore