Saturday, March 28, 2015

The Ethics of Marijuana Business Law – Better Call Saul

I love the show Better Call Saul.  Jimmy McGill aka Saul Goodman does an excellent job portraying the struggles so many young lawyers face finding their place in the legal business.  The business of law fascinates me.  I was discussing Jimmy’s latest case the other morning – a suit against a fraudster nursing home – when one of my partners commented in jest, “You’re always looking for a get rich quick scheme.”  He has a point.  I love talking about ways you could make money in the legal business.  But I usually only act on those thoughts in areas of law that truly interest me.  A suit against a nursing home would not be that much of a stretch for me.  The focus of my practice is litigation.  Now I just need a client who’s getting ripped off by someone with a deep pocket.

The other day, the same funny partner, dropped a pamphlet on my desk and said, “This might interest you.”  It was for a seminar entitled, “Marijuana Business Property Purchasing and Leasing.”  His comment was not directed at any sort of get rich quick scheme.  Quite the opposite, he was referring to a case I took because, in a sense, you don’t say no to family.

I had a client who is a medical marijuana patient.  He got pulled over, and the police officer took his money.  The State’s claim was that my client’s money was subject to forfeiture because it was in close proximity to (less than a gram of) marijuana.  Forfeiture is a civil matter, so there was no way I was going to be able to convince my friend that I could not help him. I did get to make interesting arguments like:

·    Even if the statutory presumption actually applies – that money found in close proximity to drugs is presumed to have been used for the purchase or sale of drugs – that presumption does not mean my client’s money is subject to forfeiture because my client is allowed to buy marijuana under Michigan law.

·      The allegation that my client was acting suspicious is not evidence that my client was breaking Michigan law.  All marijuana patients should act suspicious because marijuana is illegal under federal law, and Michigan has adopted a public policy against enforcing that federal law.

Twenty something pages of briefing later we won on summary judgment. It was a fun case.  But other than the extensive briefing, it is not what I would call a typical matter for me. 

The Michigan Medical Marihuana Act – for some reason that is how they chose to spell marijuana – and legalization efforts, like in Colorado, present interesting dilemmas for attorneys.  What do you do when a client asks you to help him set up his marijuana business?  The case I had did not present that issue.  I was arguing from a defensive point of view – that the money was not subject to forfeiture.  That’s fine from an ethical point of view – I think!  However, I will not help someone set up a marijuana business, and I have turned down multiple potential clients who wanted me to do just that.

What is the difference?  The Michigan Rules of Professional Conduct provide that “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal.”  MRPC 1.2(c).  Marijuana is illegal everywhere in the United States because it is illegal under federal law.  While that may seem like a technicality because that federal law is often not enforced, it still constrains me.  So while I am in favor of legalization, I will not advise clients with respect to the business of marijuana.

But, if you learn anything from Better Call Saul, you should learn this: you can almost always find an attorney that will take your money.  So, if you want to set up a marijuana business, don’t call me.  Call Saul.

That’s My Argument.

© March 2015 Brandon J. Evans