Let’s face it: Being a lawyer is not a career for everyone. Or most people with a desire for a satisfying life. Being a cannabis lawyer is for a narrower slice of us. It’s certainly not something I envisioned doing as I sat through civil procedure in law school.
But being a cannabis lawyer has been the most fun, most rewarding phase of my career. I sometimes wonder why all lawyers wouldn’t pursue this path. But please don’t confuse my excitement for this particular path as a suggestion that it is without its challenges and frustrations. To the contrary, it can be exceedingly challenging and frustrating. And it has caused me to believe that the only way to successfully counsel on cannabis issues is to become comfortable being uncomfortable.
With all that said, what can you do to become a cannabis lawyer?
- Become a subject matter expert. This is not an area of the law where you can fake it until you make it. We’re playing with live ammunition here. Cannabis is one of the most closely regulated and scrutinized products in the United States. There is no substitute for knowing your stuff. This is a good news/bad news situation. The good news: Cannabis is a novel area of law, and there is a finite amount of law to know. The bad news: Cannabis is a novel area of the law, and it is constantly evolving. Knowing your stuff means regularly staying abreast of the changing news and its implications for your clients.
- Learn to be comfortable being uncomfortable. Again, cannabis law is new and evolving — and riddled with contradictions and gray areas. When advising clients in the cannabis space, you are regularly asked to provide legal advice on questions that border on criminal and civil exposure. As a cardinal rule, you must make sure that your clients understand these risks and the consequences of any proposed course(s) of action. But if your only advice is to decline to engage on any course that involves cannabis, you are unlikely to be a cannabis lawyer for very long. So how do you offer advice to cannabis clients without running afoul of the law or professional ethics? The answer, in my estimation and fully recognizing the challenges of doing so, is to tell the truth and the whole truth, and to explain all the risks in light of the client’s proposed benefits. This requires understanding all of the risks and being willing to explain them clearly and carefully to each of your clients.
- Recognize the serious potential clients from the non-serious ones. In my experience, this one takes practice. When you work in a niche practice, you are more likely to be contacted by potential clients than when your practice is more widespread. Unfortunately, the higher number of calls typically corresponds to a higher number of calls from people who are not serious about entering that niche. Equally unfortunate, it can be difficult to determine who is serious until you actually take the calls. This requires you to use your subject matter expertise to understand what exactly is being asked of you (e.g., does the client want to grow industrial hemp or dispense marijuana) and then to use your judgment to determine whether the caller is the type of person on whom you want to stake your professional reputation. The learning curve here is steep and critical. There is no substitute for experience.
- Think like your clients, most of whom are not wired like you. As a general rule, lawyers are risk averse. As a general rule, people who operate cannabis businesses are far less risk averse. You are likely hard-wired, and have been trained, to advise clients to take the course that is least likely to lead to any type of trouble. That instinct is good and often correct. But unyielding adherence to that instinct will make it impossible to effectively advise clients who understand that there is a risk and nevertheless wish to pursue a course of action that is legal in the overwhelming majority of this country. So where is the middle ground? First, you state clearly and unequivocally that marijuana is a Schedule I narcotic under the federal Controlled Substances Act. That means that a plain reading of federal law arguably prohibits the very activity in which your clients wish to engage. And then you must walk your client through the rules and regulations of the state in which they intend to operate, and why even strict adherence to those state rules could lead to serious civil and criminal consequences.
Being a cannabis lawyer is not for everyone. In fact, it’s not for most people. But if you find yourself one of the few and the proud, it behooves you to take seriously the responsibilities that come with the job. But it doesn’t mean you can’t have a little fun doing it.