Public Lawyers and Marijuana Regulation

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution but also the more immediate risk of professional discipline. Elsewhere, we wrote about the difficult place in which lawyers find themselves when representing marijuana clients. We argued that while both the criminal law and the rules of professional conduct rightly require legal obedience from lawyers, other countervailing factors must be considered when evaluating lawyers’ representation of marijuana clients. In particular, we asserted that considerations of equity and access to justice weigh dispositively in favor of protecting lawyers who endeavor to help their clients comply with state marijuana laws, and we suggested means of interpreting relevant criminal law provisions and rules of professional conduct to achieve this result. This article builds on that analysis, taking on the particular issue of the public lawyer’s’ role in marijuana regulation. For government lawyers, the key issues in exercising discretion in the context of marijuana are not clients’ access to the law and equality but rather determining the clients’ wishes and serving them diligently and ethically. Lawyers representing state agencies, legislatures and the executive branch of government draft and interpret the rules and regulations regarding marijuana. Lawyers for federal, state and local governments then interpret those rules to determine the obligations and responsibilities of those they represent and to help their clients meet those obligations and carry out their required tasks. Both state and federal prosecutors are charged with determining what conduct remains illegal under the new rules and, perhaps more importantly, with exercising discretion regarding whom to prosecute and to what extent. Marijuana regulation is not a niche area of government regulation; it will influence the practice of virtually every public lawyer in the years to come. Public lawyers must understand the changes in marijuana law and the implications for government clients. Given the pervasiveness of the modern regulatory state, the situation is no easier — and, in many ways, it is more complicated — for public lawyers than it is for private ones. Public lawyers face myriad practice challenges with respect to marijuana law reform, and while we do not purport to identify and resolve all of the issues that are sure to arise in this short paper, we hope that the article helps alert public lawyers to some of the risks involved in participating in marijuana regulation so that they can think carefully about their obligations when these issues arise.

The Limits of Marijuana Legalization in the States

Although some ingenious solutions have been proposed to the problems posed by Section 280E pf the federal tax code, the situation remains untenable. The only solution to this current conundrum is a change in federal law; so long as marijuana remains illegal under the Controlled Substances Act, state marijuana policy will inevitably be frustrated. This brief response to an article by Professor Leff identifies some of these frustrations and proposes a few modest federal solutions

Paddlefish Management in Missouri

Paddlefish populations have begun to decline throughout their historic range but are still found in 22 states in the southeastern and midwestern United States. This capstone project investigates problems facing paddlefish management including, pollution, habitat loss, poaching, and the illegal caviar trade. A combination of four management options is beneficial for the species by increasing public knowledge and awareness of what paddlefish require for survival, allowing paddlefish to be used as a natural resource. After comparing a typical state paddlefish management plan and the plan developed and used in Missouri, it is apparent that a national paddlefish management plan template is necessary for affected states. A plan provides direction for effectively maintaining paddlefish stocks, according to state specific management goals.

The Creation of a Legal Ordinance and Program Manual for the Purpose of Illicit Discharge Detection and Elimination

Illegal dumping and improper disposal of pollutants in urban areas can contribute significant pollutant loads to the municipal separate storm sewer system (MS4) and natural environments. Illicit discharges to the MS4 can pose a significant risk to human and environmental health. The Clean Water Act requires that municipalities implement a legal mechanism and plan to detect and eliminate illicit discharges to the MS4. The methodology for program creation included the analysis of other municipal illicit discharge programs, review of state and federal guidance publications, and the review of illicit discharge case-studies. This paper describes a systematic approach applied to the creation and implementation of a legal ordinance and program manual designed for the purpose of illicit discharge detection and elimination (IDDE).