Ideas from the Front

Growing Practices

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Medical marijuana should be a dead issue. After a U.S. Supreme Court ruling last year, state laws legalizing marijuana for medical purposes were supposed to be trumped by federal laws outlawing the drug.

But at the Pier 5 Law Offices in San Francisco, medical marijuana cases have become such a thriving business that a handful of attorneys left to start their own practice dedicated to marijuana-related work.

“I’ve got cases in almost every county, all on this marijuana stuff,” says Danny Schultz, one of the lawyers who left to found the Jackson Square Law Offices. “Last week I was only home on Saturday. I think I’ve stayed at every Best Western in every small town in this state.”

The Supreme Court’s recent ruling in Gonzales v. Raich, 125 S. Ct. 2195 (June 6, 2005), upheld federal power under the commerce clause to bar medical marijuana. The court ruled that federal drug laws override initiatives such as California’s Proposition 215 that allow limited marijuana distribution for medical purposes. As a result, federal law enforcement agents could theoretically shut down all growers and medical marijuana clinics that operate according to these state laws. But they haven’t.

Indeed, medical marijuana dispensaries are thriving. According to the California chapter of the National Organization for the Reform of Marijuana Laws, the number of cannabis dispensaries in the state has grown from a handful a few years ago to around 150 today. And dispensaries continue to exist elsewhere, including Oregon, Nevada and nine other states that have enacted similar laws.

“When the first cases came down against medical marijuana growers, I thought at the time they would just sweep up all the clubs—at the time there were only about 20, all in the Bay Area, so it would have been easy,” says Dale Gieringer, who coordinates NORML in California. “But it never came.”

The resulting growth has meant a boom for lawyers specializing in drug law. Representing marijuana dispensaries is far from a lucrative practice area, say lawyers involved in the specialty. But since Proposition 215 passed in 1996, there has been a regular and steady demand for legal services in this area.

What does the practice entail? A lot of paper pushing, says Terence Hallinan, who was the district attorney in San Francisco when Proposition 215 passed and is now in private practice representing several medical marijuana dispensaries.

Hallinan supported Proposition 215 as district attorney in San Francisco and his office made a point to leave medical marijuana dispensaries alone. He now uses his experience in City Hall to help medical marijuana distributors file the complex permits required to operate such a business. His son Brendan helps out with land use and zoning issues, something drug lawyers did not need to know much about in the past. “Right now they need a lot of help getting past the bureaucracy,” Hallinan says.

Not an Ordinary Practice Area

But no one should confuse a marijuana practice with an average business law practice. Marijuana lawyers have to advise their clients that they could be arrested at any time should federal law enforcement officers choose to enforce drug laws.

“It’s not really a zoning issue the way builders or developers understand it,” says Ed Rosenthal, an Oakland, Calif.-based marijuana activist and one of the first people arrested for growing medical marijuana. “It’s more like zoning laws for porn shops.”

Most attorneys in this practice say they take medical marijuana-related cases for political and personal reasons rather than to just make money. “To me, this is one of the coolest, most interesting practices around. When I’m at a party and I tell another lawyer what I do, they say, ‘I want your practice,’ ” says Omar Figueroa, a criminal defense attorney in the Pier 5 Law Offices in San Francisco. “It may not be lucrative, but do I want to represent huge, faceless corporations for $400 an hour like my classmates from Stanford? No, I want to represent human beings.”

Lawyers must also be willing to be put in difficult positions, thanks to the disconnect between California law and federal law. Even though California law seems permissive, ambiguity and confusion remain over what is legal—and where. Regulations vary from county to county regarding issues such as how many marijuana plants a dispensary can grow. And lawmakers in San Diego and other cities have made it prohibitively difficult for dispensaries to open in their jurisdictions.

And raids do happen. Federal agents with the Drug Enforcement Administration have hit a number of medical marijuana growers in California, but NORML says the targets have been either high profile activists who have attracted publicity or commercial scale growers who have been turned over for federal prosecution by local law enforcement. Local police have also raided several dispensaries, confiscating marijuana plants when it appeared there were more than the law allows. But news reports indicate most dispensaries reopened hours later.

Many local law enforcement officials support the aims of medical marijuana dispensaries but want to reel in excesses. “We’re in about the same situation as when this all started; it’s still one heck of a mess for law enforcement,” says Bob Hussey, executive director of the California Narcotic Officers’ Association. “But the fact is a lot of people use this as a guise to continue to deal.”

Weeding Out Misuse

Attorneys also admit that some healthy people use the dispensaries, but they argue that the problem is waning. “I think that was a legitimate complaint in the beginning, but that’s been largely weeded out,” Schultz says. “[The dispensaries] know they’re on thin ice, so they check people out extremely closely.”

Hallinan has taken to advising his clients to keep as little paperwork as possible to make it hard for law enforcement to prosecute them.

Matthew Kumin, a civil rights and business law attorney in San Francisco, says counseling medical marijuana clients can be difficult. “Any lawyer can be on the edge with a client, but how far is it before they step over a line?” Kumin says. “I tell clients that are pondering whether to open up a dispensary [that] I think you’re crazy to take this risk.”

Lawyers who work with dispen saries hope that they and their clients can negotiate uncertain legal terrain until federal law changes.

“As medical marijuana becomes more legitimate, our clients will eventually be just like any other businesses,” Figueroa says. “There will be a Whole Foods of medical marijuana, and in the long run I’m sure there will be plenty of boutique law firms that specialize in this area.”

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