Marijuana Law Behind The Curtain

Marijuana Business Attorneys, Circa 1962
Marijuana Business Attorneys, Circa 1962

A landlord with a number of rental properties recently called us. The landlord’s rental contracts do not allow for marijuana use on their rented premises. There was a tenant at one of the properties that had clearly been smoking for months, and the landlord wanted my law firm’s help in either issuing a cease and desist notice or in helping to secure an eviction. We declined to take on the case, and the landlord was dumbfounded. She made clear that she would be willing to pay our “regular rates” and she even asked why our website mentions that we do landlord-tenant work in the cannabis space.

Why didn’t we want to handle this landlord’s work? And what sort of calculus do we undertake in deciding the work we take? It really comes down to a few key parameters: whether we are capable of doing the work, whether it presents real or reputational conflicts, and a final gut check.

First, for us to take on any legal matter we have to believe/know that we are up for the task. In addition to an ethical duty that we be competent in providing services, it is not in anyone’s interest for us to flounder about trying to build expertise in a field that has actual experts. My firm does not have anyone expert in filing for divorces, writing wills, or drafting municipal bond measure. We also do no criminal law and whenever confronted with a cannabis criminal law issue, we refer it out to lawyers who do nothing but criminal law. We tend to think that cannabis business lawyers should not be practicing criminal law, and vice-versa. We wrote about that in How To Choose Your Cannabis Law Firm.

The next decision point is whether we think there are either direct or indirect conflicts. Most people understand direct conflicts. If we are representing a client in a business matter, we cannot represent someone who is suing that client. Indirect conflicts are a little harder to define. This is not something determined by the attorney bar so much as it is by us, and every firm treats this issue differently. For example, most big law firms are choosing not to represent cannabis businesses at all because they know that will always put them in conflict with certain of their more important (to them) banking, landlord, insurance, and municipality clients. We take the opposite approach, choosing to turn down work from these sorts of companies when they want to use our expertise to pursue claims against cannabis businesses.

Employer-employee disputes are another area where we will not represent the business side if it will require we go against our views on cannabis freedom. We have and will continue to refuse to represent an employer who wants to act against an employee for using marijuana, even though our law practice is decidedly business-focused. We believe that employers should give accommodations to medical marijuana patients and it is just not worth it to us to go against that belief. We will never align with our clients on every issue politically, but a core group of our clientele would be furious with us if we start taking on those sort of cases, and for good reason. Not only that, a large number of our own lawyers and staff (maybe all of them) would be furious with us as well, and no doubt would start to question our integrity if we were to do that.

Finally, there is the wild card hunch part of this. Here’s an example: during the licensing process in Washington, someone asked me to help him start an art gallery. It sounded like something fun to do. I like art and it would be a nice little business. Something about how the person talked about it, though, and the way he was talking about expected returns didn’t really make a lot of sense. Independent startup galleries are hobby businesses; most people starting them aren’t going to be getting rich. But this client was so gung-ho about getting it going ASAP to start generating revenue that I had second thoughts. Then I remembered this scene from Breaking Bad and things clicked for me. I refunded the guy’s money and moved on.

That’s a bit of a look behind the curtain of choosing clients.

What do you think?