Cannabis field 'uncharted territory' for lawyers if legalization occurs

Larry Mishkin got involved because he sees it as a new frontier: forming the legal understandings of the cannabis industry as the substance is approved for medical or recreational use in some states, yet remains prohibited on the federal level.

After 30 years in other types of law, Mishkin said he's been excited to work for the past four years for Hoban Law Group, a Denver-based firm that handles legal matters for cannabis industry businesses.

From his Northbrook office, he handles the legalities of establishing businesses that grow, process, package or sell the product, as well as cases about employment drug testing or drugged driving.

He's building on experience he began to gain as soon as Illinois' medical marijuana program was approved in 2013.

"It's really a unique opportunity for lawyers because unlike just about anything we do ... once we get into cannabis, we're really in uncharted territory," he said. "We're just beginning to learn what everyone's rights are."

Rights as far as cannabis goes could be about to change for adults in Illinois. Gov. J.B. Pritzker so strongly supports the idea of creating a recreational-use market that he has factored revenue from sales and licensing fees into his first budget proposal. And that could expand profitable possibilities for many entrepreneurs, even those with talents in seemingly unrelated fields.

"There's a real demand for lawyers who understand the laws and how the cannabis rules affect what are the normal everyday rules," Mishkin said.

That's because legally, a new market would leave Illinois cannabis businesses in the same limbo where those in the medical program have been since retail dispensaries opened in 2015.

"Just because Illinois says we can do it, we're still breaking federal law," Mishkin said. "There's a lot to learn about how the two systems work together, how the state and federal governments approach it."

A business could follow every regulation at the state level but still technically be engaged in the sales of a product classified by the U.S. Drug Enforcement Agency as a Schedule I drug. Schedule I is reserved for substances with the highest potential for abuse and "no currently accepted medical use," such as heroin, ecstasy or LSD.

"If the attorney general decides to crack down on state-level legal businesses, they have the ability to do so," said Morgan Fox, spokesman for the National Cannabis Industry Association.

Federal illegality affects banking services and tax deductions, and it clouds employee and employer rights about substance use and drug testing, Miskin said.

Some issues that remain to be worked out include how to fairly conduct intoxication tests during traffic stops for drugged driving and where the line lies between presence of and intoxication from cannabis detected in an employee drug screen.

It's all unfolding, especially as elected officials such as Pritzker, state Sen. Heather Steans and state Rep. Kelly Cassidy of Chicago float plans to change the system, such as a bill Steans and Cassidy introduced in 2017.

"For a guy practicing for 30 years to have the opportunity to jump into something that's literally brand new," Mishkin said, "we are helping shape the law and the policy just based on what we do on a daily basis."

But before lawyers can help would-be entrepreneurs interpret adult-use cannabis laws, the state legislature would need to consider and approve a new bill for legalization. Although the idea is unpopular with suburban doctors as well as school and police leaders, who fear increases in cannabis-related overdoses, fatal crashes and misuse by teens, many supporters and skeptics alike predict it eventually will become law.

If the state uses similarly stringent regulations to those placed on the medical market, that would "help us have a more regimented program," said Mahja Sulemanjee, director of marketing and outreach for Grassroots Cannabis, which operates Illinois dispensaries under the Greenhouse brand in Deerfield, Litchfield, Mokena and Morris.

Illinois cultivation and consulting company Revolution Enterprises also welcomes enforcement over sales practices for recreational use. The company is focused on genetic research and technology and wants to ensure product safety.

"We believe in a regulated industry," said Dustin Shroyer, chief operations officer. "We do think the industry needs to be safe and regulated for the end consumer."

It all could mean more work for cannabis-focused attorneys such as Mishkin, who provide the same legal services they do to any other business to those already in - or looking to join - this emerging field.

"For anybody who is involved on any level with the cannabis industry," Mishkin said, "adult use opens the market and will greatly, greatly, greatly increase business."