July 1, 2016
By Lauren Wood
Just as stories of finding gold and striking it rich reached the forty-niners’ ears back in 1848 during the California gold rush, news of the many opportunities that marijuana law can bring is spreading like wildfire. Whether you are a new lawyer, an experienced lawyer looking to change career paths, or even a lawyer looking to explore an untapped market, the “Green Rush” is your new frontier.
With the recent passage of Proposition 64 (also known as the Adult Use of Marijuana Act), a great deal will be changing regarding consumer use and distribution of cannabis in the next few years. Proposition 64 legalizes recreational marijuana and hemp in the State of California for users above the age of 21. It will also establish certain sales and cultivation taxes. With proposition 64’s passage comes new legal questions and issues, and an entirely new field of practice for lawyers.
The passage of Prop. 64 is indicative of a growing trend in the United States, as California has been added to the list of states that have legalized marijuana for recreational use. More than half of the states in the U.S. have either legalized marijuana for consumer use, for medical use, or have decriminalized the use and possession of marijuana. California was already ahead of the game prior to passing Prop. 64, as the state previously allowed the medical use of marijuana. While some states are slow to follow, the growing trend in the U.S. shows that no matter which political party gained control of the government after the election, cannabis is here to stay.
But how could this affect the legal profession? Well, to sell and distribute marijuana under the new law, businesses must obtain a license with the state. This may also include obtaining a local license with the county or city municipality. Obtaining these licenses results in a lot of consumer questions and possible future litigation over their acquisition. Many new dispensaries will need advice from a lawyer regarding how to be in compliance with state and local laws, and some may require representation when permits are unlawfully denied, or when faced with civil lawsuits brought by consumers to have dispensaries moved out of their neighborhood. Additionally, the formation of the marijuana industry as a whole brings new legal issues relating to taxes, patents and corporate formation. There are thousands of consumers out there who will need assistance with each of these issues.
However, just because cannabis is an un-tapped legal market doesn’t mean it will be easy. An attorney who practices marijuana law may be faced with becoming an expert in business law, administrative law, intellectual property, criminal law, employment law and tax law, since marijuana law can involve a combination of these practice areas. Attorneys looking to dive into marijuana law should seek to develop a strong foundation in business law.
The real key to becoming a good marijuana lawyer is to master the business side of the law. Once that is complete, you must then learn the “extras” — both to set you apart from other lawyers and to make you a cannabis expert in the legal field. These “extras” often include becoming familiar with federal laws (including learning the ins and outs of the Controlled Substances Act) and knowing the inconsistencies between state and federal law. These inconsistencies often trigger business conflicts. Importantly, a good marijuana lawyer must also be an expert on the state laws regarding sale, distribution and consumer use of marijuana. This may also include gaining a solid understanding of tax law, as your new business clients will undoubtedly face difficulties abiding by strict tax requirements.
But just like any other practice, a marijuana attorney doesn’t have to do everything. One can either choose to tackle the broader field or specialize in a specific niche, such as land use, environmental law, commercial litigation, corporate transactional work or corporate formation. Alternatively, you could even specialize in intellectual property and patent law, taking on clients who may wish to patent or protect their newly developed marijuana strains. Since patent attorneys must also take the Patent Bar, this is an even smaller subset of the profession that is also likely in need of more attorneys specializing in the subject.
Though the task of mastering this new frontier may sound arduous, it could lead to big rewards if done properly. Timing is of the essence, though. Those looking to enter the field sooner rather than later will reap the benefits of an un-flooded market. Don’t be the one to miss out on this exciting and evolving legal field.
Lauren Wood is a partner at the Law Offices of Schurmer and Wood, with offices in Santa Barbara and Ventura/Oxnard, California. She is a civil litigation attorney specializing in plaintiffs’ personal injury and wrongful death matters.