Up to this day, Colorado and Washington are the only two states to have legalized recreational use of marijuana. Numerous other states have voted to allow it for medical purposes and many of them will most likely legalize it for recreational use during elections in 2014 and 2016.
It is fair to say that the states have taken progressive actions in dealing with the issue of marijuana legislation. So far so good, but there is just one small problem; it is still a federal felony to grow, sell or possess cannabis in the United States. State-licensed growers and sellers are thereby criminals in the eyes of federal law.
In August 2013, a memo was issued by U.S. Deputy Attorney General James Cole where he stated that prosecutions should focus on drug cartels and other criminal organizations that are growing and distributing marijuana. Meaning that state-licensed distributers have nothing fear. This is, however, not entirely correct since the federal law making marijuana illegal is still on the books. The next presidential administration could easily – though not very likely – change this policy whenever they like to.
But even if the next presidential administration would change its policy on marijuana, the Justice Department does not have the capacity to control illegal production of marijuana in each and every state without help of state and local police since federal drug law enforcement is only small part of the national drug enforcement effort.
What we have here is thereby a substance that is both legal and illegal at the same time. From a strict legal perspective this ‘conflict of laws’ raise a lot of interesting questions. One question that many attorneys and lawyers have asked themselves is whether it is OK to work with marijuana businesses or not. Until recently, this question was pretty much up for debate. Since this week however, at least Colorado’s lawyers have the state’s permission to work with marijuana businesses, after the Colorado Supreme Court approved a rule change.
The new rule in Colorado states that lawyers may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statues, regulations, orders, and other state and local provisions implementing them. Translated into English this simply means that lawyers have the right to work with marijuana businesses as long as they do not help these businesses to break state law.