Green Conflict — Marijuana Businesses and the Law, Part 2

Green Conflict — Marijuana Businesses and the Law, Part 2

I’m continuing to summarize some of the key issues and story opportunities that occurred to me when I recently attended a CLE (continuing legal ed) seminar on Marijuana Business Legal Considerations. (As with all my posts, all comments here are intended solely to alert fiction writers to issues that may give them story ideas or suggest where further research is needed; for advice in real life situations, consult a lawyer admitted in your state.)

Some states require all employees to be licensed by the state to work in the industry, whether in a retail dispensary, in a grow operation, or in a manufacturing operation. Can your characters pass the background check? This varies state by state; Colorado seems to be more restrictive, while Washington, according to one speaker, viewed legalization in part as a way to bring those who were selling illegally under the regulatory umbrella.

What about municipal zoning? Advertising. Child-proof packaging? Products can’t look like candy—how do you package and label a pot-infused brownie so that it doesn’t attract a six-year-old? Colorado requires opaque packaging; green and black bottles are becoming common.

Does your client run a testing facility? All kinds of story potential there, including corruption, false test results, false testimony, and other problems that have plagued forensic labs across the country. Who tests the testers?

Ancillary businesses: Business equipment manufacture and sale offers great opportunities—think of grow lights, packaging (labels, bottles), testing equipment, and more. Strict ownership requirements may not apply, giving you a chance to bring in a goon or a good guy from out of state.

Some terms of the art: Experts speak of three types of product: “usable marijuana,” infused goods, and concentrates.

Pricing and demand: According to the speakers, prices in Washington are lower for medical marijuana than for recreational pot, which makes some sense. The Colorado speaker said the prices are equalizing, as predicted—remember that Colorado taxes pot heavily, a factor in the prices. Renewal rates for medical cards are dropping; recreational pot offers more profit potential.

Ethics issues for lawyers and others: Your fictional lawyers need to be careful to stay on the right side of conspiracy laws that prohibit working with others to distribute illegal drugs. Speaker Jeffrey Gard cautioned attendees to make sure their clients know they are “operating at the mercy of federal law,” and say so in the fee agreement. According to the speakers, the only attorneys convicted were directly involved in the operation. [If this interests you, look at the case of Montana attorney Chris Williams, who was convicted in federal court of firearms violations, because he kept a gun on the premises of a grow operation; the judge believed the potential 80 year sentence unjust, and brokered a post-conviction agreement that gave Williams the mandatory minimum of five years plus probation.]

Interpretation of RPCs (state Rules of Professional Conduct governing lawyers) vary widely on the question whether lawyers may advise clients who are engaged in illegal activity—which this still is, under federal law. Generally, lawyers must advise clients of that illegality, but can then advise on contracts, leases, and other legal matters.

The speakers made the point that state bar ethics interpretations are evolving, along with public attitudes in general. Of course, all other ethical rules, such as those governing confidentiality, conflict of interest, and fees, still apply.

A few other topics: Other topics, not discussed in the seminar, offer great potential for conflict—and thus, story:

-The regulation of hemp, a plant related to marijuana.

-Racism, especially in enforcement, but also, I suspect, in medical care.

-Issues for employers: impairment, testing—testing protocols and application of results will change as the scientific evidence of impairment and testing evolves.

-And of course, driving while under the influence. Be sure to check your story state for the legal terms in use.

For historical writers: One speaker, Seattle attorney Robert McVay, mentioned a story—he said he hoped it was true, but could not verify its accuracy—that marijuana was listed on Schedule 1 as a dangerous drug, along with heroin by Richard Nixon as a way to try to control “the hippies,” who so adamantly opposed his actions in Vietnam. (In contrast, cocaine is listed Schedule 2, meaning highly dangerous and potentially addictive, but with medicinal value.)

Of course, marijuana use long predates the 60s. I have heard—and not verified—that marijuana became popular during Prohibition because it was legal and alcohol was not.

More info: One speaker’s law firm runs a blog that addresses marijuana business issues. And Ohio State University law professor Douglas A. Berman runs the Marijuana Law, Policy and Reform blog, addressing many of the issues the speakers discussed and more. If your characters are in the canna biz, take a look.

The marijuana business is complicated and evolving—and it is both a business and industry, with all the typical ingredients and quite a few more, because of the uncertain and variable legal status, and the moral issues. As one of the speakers said, there is a ton of misinformation out there. That makes it tricky for writers. My suggestion: Avoid getting too specific about laws that might change. Look for the conflicts between your characters. Because what will not change is that the heart of story lies in what our characters want, and what they will do to overcome the struggles and obstacles they face.

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