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
