Business Law Section considers creating a cannabis law entity
A Business Law Section working group is carefully weighing whether cannabis law practitioners should be given formal participation in the section, possibly through a committee, task force, or subcommittee.
Business Law Section Chair Jay Brown appointed the Cannabis Law Working Group at a June 27 meeting of the BLS Executive Council after a motion to form a Cannabis Committee was tabled. That decision followed a “get-acquainted” meeting of cannabis law practitioners and section members at the Bar’s Annual Convention that drew scores of participants.
Chaired by Alan Howard, the 18-member working group consists of several past section chairs, cannabis law practitioners, and section members who have voiced strong opposition or serious concerns about granting formal status within the section.
The group has until the Business Law Section’s annual Labor Day retreat to make a recommendation.
“The goal of the study group is to evaluate options to provide cannabis law practitioners participation in, access to, and benefits of the Business Law Section, whether as a full committee, standing committee, or special committee, or taskforce, or a subcommittee within an existing substantive law committee,” Howard said.
Interest has been growing for greater cannabis law practitioner participation in The Florida Bar since Florida voters overwhelmingly – 71% — approved Amendment 2 legalizing medical marijuana in 2016. Market analysts predict the industry could be worth $20 billion. But marijuana remains a banned substance under federal law and a “Schedule I” narcotic, which like heroin, is deemed to have no accepted medical use.
The federal ban raises legitimate concerns, Howard said.
One of them is whether federal judges who are also section members would be unable to attend certain section events.
“The reality is that this industry in many ways is still associated with violations of federal law,” Howard said. “How does a judge whose attendance at a section event that is subsidized by the section, reconcile that with the section receiving sponsorship money, potentially, from a cannabis company? Those are questions that we are wrestling with and giving considerable thought and discussion to.”
At the same time, Howard notes, the Board of Governors issued a policy in 2014 that addresses the gap between state and federal law. It says the Bar will not prosecute attorneys solely for advising clients about the “scope and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct the lawyer reasonably believes is permitted by Florida statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.”
“Obviously, the cannabis industry, both medical marijuana and hemp, are significant business sectors for the state of Florida,” Howard said. “So our clients are dealing with these issues and we certainly recognize a need for cannabis law practitioners to have a home within the Bar.”
The working group has been assigned to weigh the “negative and positive aspects of participation,” including “concerns over section reputation, membership enhancement or detraction, and use of proceeds from potential sponsors or from events involving cannabis law practitioners being inappropriate under both Federal and Florida law.”
The Board of Governors, acting on a recommendation by the Program Evaluation Committee, declined in June to grant a request to form a board cannabis law committee. Instead, the board recommended allowing a Bar section to consider forming a subcommittee or other subgroup.
The Business Law Section, home to substantive law committees such as bankruptcy, business litigation, and intellectual property, would be an ideal home for cannabis law, said working group member Jonathan Robbins.
Robbins is cannabis practice chair at Akerman, a national firm with offices in Florida, and was recognized last year by the National Law Journal as a “Cannabis Law Trailblazer.” A cannabis law subcommittee of the Business Law Section could act as a subject-matter expert for legislators, sponsor CLE programs, offer networking opportunities, and attract new members, Robbins said.
Robbins stresses that the practice area includes hemp, which is no longer banned by federal law.
According to the National Center for State Legislatures, 14 states and U.S. territories have approved adult-use, recreational cannabis and 34 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have approved, “comprehensive, publicly available medical marijuana/cannabis programs.”
A survey by the Business Law Section’s Cannabis Working Group shows that at least nine other state bars, including New York, New Jersey, Colorado, Oregon, and Pennsylvania have formed cannabis sections, committees, or special committees. California is considering one.
The working group will ultimately decide what’s in the best interest of the Business Law Section, Robbins says. But whatever it decides, the industry isn’t going away.
“Having done this type of work now for the last five years, I know that it is a young, emerging area of practice, and the attorneys who are getting into this space tend to be young, dynamic, and energetic, and these are the attorneys who we would love to become members of the Business Law Section,” Robbins said.