Fast Action Needed to Let Hawaii Lawyers Advise Medical Marijuana Industry
A late-in-the-game legal opinion saying attorneys could face ethics charges for helping medi-pot businesses get established requires quick action.
To call Hawaii鈥檚 oversight of medical marijuana lacking might be as kind a characterization as one could make.
First, our state legalizes medical marijuana in 2000, but fails to establish a legal means for patients to purchase the drug, leaving some of Hawaii鈥檚 most vulnerable individuals in an ongoing 15-year limbo. Either they grow their own, or risk arrest in buying on the black market.
When the Legislature finally works up the nerve earlier this year to pass legislation allowing the establishment of legal medical marijuana growing and dispensary businesses, it does so knowing a significant problem must be addressed for these businesses to open properly, namely Hawaii lawyers must be allowed to help clients apply for licenses without fear of violating federal law or state ethics rules.
The idea that attorneys could be held liable for “assisting the client to commit a federal crime” was affirmed late last month by the state Supreme Court Disciplinary Board, and its is sending shock waves through Hawaii鈥檚 legal community, as Civil Beat鈥檚 Anita Hofschneider reported Tuesday.
Though the disciplinary board opinion is just that 鈥斅爄t鈥檚 neither case law nor legislation 鈥斅爈awyers have nonetheless already begun dropping clients they had been assisting with the application process, creating a cloud of uncertainty around the awarding of licenses and the ability of chosen licensees to open their businesses on time next year, as the law envisioned.
It鈥檚 a hot mess, as they say.
Deadlines for key milestones in the licensing process loom. By early October, potential applicants must be able to show a bank balance of at least $1.2 million. That will require a business structure attached to that bank account that only a fool would attempt to create without the guidance of an attorney, particularly in such a dynamic period of legal transition for medical marijuana and those who would grow and sell it.
Potential licensees who now find themselves without proper legal help or reliant on out-of-state attorneys may now have legitimate claims of being unfairly disadvantaged in the selection process, if they are not chosen, further complicating the likelihood of new medical marijuana businesses opening on time.
Area law firms and attorneys are mobilizing to have this issue addressed immediately. A petition letter is circulating now asking the state Supreme Court to intervene. The court could amend the or add an 鈥渁ppropriate comment,鈥 absolving attorneys of any potential ethical violation should they provide the legal assistance in question.
Legislators didn鈥檛 address this matter over concerns that an exemption would run counter to the separation of powers. But since this was known during session, it should have been raised prominently months ago so that it could be addressed in a reasonable time frame.
While the permit the court to amend the professional conduct rules, such changes are typically subject to a 90-day comment period. The court can order a shorter comment period, if it wishes, but any delay in doing so begins to cause real problems. As of Wednesday morning, no request to address the matter had been received. Once one is filed, the spokeswoman said the court will determine 鈥渢he appropriate action to take.鈥
In comments posted on Civil Beat, Senate Judiciary and Labor Chair Gil Keith-Agaran pointed to Minnesota, where legislators included a section in their marijuana bill 鈥 which their Supreme Court affirmed 鈥 specifically exempting that state鈥檚 attorneys from any disciplinary action relating to legal assistance provided to licensed marijuana growers. Authorities in New York, Colorado, Connecticut, Nevada and Arizona have taken similar steps, either through rule changes by their supreme courts or state bar associations.
Rep. Della Au Belatti, a member of the House Judiciary Committee, said legislators didn鈥檛 act on this issue over concerns that an exemption would run counter to the separation of powers. It’s a legitimate concern. But since it was a known concern during session, it should have been raised prominently months ago so that it could be addressed in a reasonable time frame, not with deadlines looming in the immediate future.
Remember, this isn鈥檛 the only complicating factor in getting medical marijuana businesses off the ground. The state Department of Health still doesn鈥檛 expect to publish administrative rules until December that spell out exactly how the industry will be regulated. As Civil Beat editorialized in August, because dispensary applications are due less than two weeks after the Health Department鈥檚 self-imposed deadline to publish those rules, any irregularities could create suspicions of rigged processes.
The new inability of potential applicants to get proper legal counsel would only heighten those suspicions.
In an exchange with Civil Beat, Au Belatti predicted there will be quick action to address or at least start the process of addressing the ability of lawyers to do their jobs, possibly this week. For the thousands of Hawaii residents who look to the new medical marijuana law for relief that is appallingly long overdue, that resolution should come quickly.
