“Weed law,” it turns out, is neither as exciting nor as boring as you might think. In this episode, Matthew Buck offers a window into the world of weed law, the ethics of advising clients who are committing federal crimes, and how to market a niche practice.
Matt Buck
Matt works for Corry & Associates, and he has successfully resolved numerous marijuana cases ranging from cultivation to RICO violations, and has assisted in the formation of grows, dispensaries, and MIPs across Colorado, from the Western Slope to Pueblo, County. Prior to working on marijuana cases, he represented hundreds of clients in immigration matters, including complex litigation against the Office of Immigration Litigation before the District of Colorado and the Tenth Circuit Court of Appeals.
When not striking deafening blows to the egos of Harvard Law graduates in Federal Court, Matt enjoys rooting for the Denver Broncos, Paris Saint Germain, and making smack-yo-mama-delicious BBQ.
You can follow Matt on Twitter and LinkedIn.
Thanks to Ruby Receptionists, Spotlight Branding, and FreshBooks for sponsoring this episode!
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Transcript
Voiceover: Welcome to the Lawyerist Podcast with Sam Glover and Aaron Street. Each week Lawyerist brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. Now, here are Sam and Aaron.
Sam Glover: Hi. I’m Sam Glover.
Aaron Street: And I’m Aaron Street, and this is Episode 107 of the Lawyerist Podcast, part of the Legal Talk Network. Today we’re learning about weed law-
Sam Glover: Weed law, man.
Aaron Street: … from Matthew Buck.
Sam Glover: Today’s podcast is sponsored by Ruby Receptionists and its smart, charming receptionists, who are perfect for small firms. Visit, call ruby.com/lawyerist to get a risk-free trial with Ruby.
Aaron Street: What if we told you that having a new website designed for your law firm doesn’t have to suck? Spotlight Branding prides itself on great communication, on meeting deadlines, and on getting results for their clients. Learn more at spotlightbranding.com/lawyerist.
Sam Glover: Today’s podcast is also sponsored by FreshBooks, which is ridiculously easy to use and packed with powerful features. Try it now at freshbooks.com/lawyerist, and enter “Lawyerist” in the how did you hear about us section.
Aaron Street: We spent last week’s episode talking about whether lawyers can help innovate, and whether lawyers understand technology enough to make things, and in the past week we helped make a thing.
Sam Glover: Yeah, we did. It was pretty neat. You were down at the midyear meeting for the ABA in Miami.
Aaron Street: Heck yeah.
Sam Glover: Yeah, and like on Friday afternoon I got a message in Slack saying, “Hey, can you help with this thing really fast?” So, we helped.
Aaron Street: Yeah, so I am on the ABA’s law practice division Legal Futures Initiative, which is kind of a gathering of a bunch of innovators in the profession talking about the future of law and the future of law practice, and at the meeting in Miami last week we all got there and realized that, setting aside the future of law practice, there were some more pressing issues in law that needed some innovators to work on—namely the travel ban, immigration ban, Executive Order from President Trump—and so our committee spent a couple of hours thinking about how we, as a group, could help lawyers solve that issue.
We created a website, ImmigrationJustice.US, as a partnership between the ABA, the Immigration Lawyers Association, and some other groups with the idea of being a one-stop place for lawyers interested in volunteering on those immigration issues, to be able to sign up as volunteers, learn more about immigration law in general, more about specifically representing clients on these particular issues related to the Executive Order. So, we got Lawyerist involved in helping to build the website, and a team of lawyers as volunteers were able to knock out a fully functioning piece of legal innovation in an afternoon.
Sam Glover: Yeah. It’s pretty neat, and when I was talking with Ed Walters from Fastcase about it, because he was helping out with the effort, he explained that when the website was shown there was applause, and he said, “I don’t ever want to hear anybody applaud for just slapping together a website ever again, because it’s easy and that isn’t something that people should applaud for,” and I totally, 100% understand what he’s talking about, but the traditional model would have been like, “Okay, let’s go find a budget. Let’s figure out what this is all going to cost,” and it would have taken six months at the least, and it would’ve been a huge, expensive undertaking, and by the time it got done who knows if it would’ve helped anything?
Aaron Street: Yep, and so, in this case, rather than having a month’s long committee process to decide what we could build, and how to do it, and who should do it—a group of lawyers without the help of non-lawyers—was able to knock out a project in a day, and a couple days later ABA President Linda Klein highlighted it both for its innovation work, but also because of the importance of the substantive issues at play.
Sam Glover: Yeah. It’s cool. I was thrilled to play a small part in it, but I think it’s just neat to see the ABA—which is sometimes seen as a big, clunky organization—be the opposite and be nimble, and responsive. Hopefully they can use that experience, and hopefully, others can use that experience to say, “You know what? Next time something big like this happens, if we need a website let’s just get one up, and we can make it happen, or if we need to employ other tools let’s just do it, and figure out what you need and then make it happen.” Instead of sitting around worrying about committees, and budget allocations, and things like that. So, it was really inspiring. It was cool leadership on the part of the ABA, and we were thrilled to play a small part.
Aaron Street: It’s also cool because that wasn’t the only project of this kind going on at the same time. Greg McLawsen, who’s been a guest on this podcast a couple of times now, and Joshua Lenon from Clio who’s been on the podcast, and some other folks also as a volunteer, Rapid Creation Effort, got together about the same time and created AirportLawyer.org, which has some slightly different functionality, but is another rapidly developed, lawyer built tool to address some of these same issues. Not only are there parallel, lawyer led innovations going on, but they are making things easily and quickly that work.
Sam Glover: I guess I would say—and that one is also very cool—the next time there is anything resembling this scale of mobilizing lawyers to address an emergency, I would love to see those websites pop up within 48 hours rather than a week. If you’re part of one of those shoot me an email. I don’t know that we can help, but I’m always interested in exploring those things, and if we can help I’d love to. I’m neck deep in building websites just about every day, and that’s one of the skills that I can sometimes bring to the table, and we have some varied skills on our team. So, if you’re at a bar association, or a specialty bar or an organization and you want to take lead on it, and you aren’t sure where to go, reach out to us. We’d love to hear from you.
On that point of loving to hear from you, lots of podcasts say every episode several times how much they want you to send in questions or comments, and I guess we just assume that you usually don’t need to tell lawyers to say what they’re thinking, but if you do have questions or comments and you’re holding onto them, please email us. Send them to email@lawyerist.com. We would love to hear from you, we’d love to address your questions on the show or on the website, and it’s nice to know that you have thoughts about the podcast even if they are thoughts like we are morons and should have asked different questions. We don’t mind. Email us at email@lawyerist.com. All those things said, here is my conversation with Matthew about weed law.
Aaron Street: Weed law.
Matthew Buck: Hi. My name is Matthew Buck. I’m a cannabis attorney from the beautiful mile high city of Denver, Colorado.
Sam Glover: A cannabis attorney. Is that the accepted, professional way to refer to weed?
Matthew Buck: It depends who you’re talking to. If I’m talking to someone at Starbucks, I’ll tell them I’m a marijuana attorney-
Sam Glover: Nice.
Matthew Buck: …but professionally I will sometimes—as I’m allowed to do because we have the DBA—I will sign pleadings as the Cannabis Law Firm, which would then make me a cannabis lawyer.
Sam Glover: Nice. I like that. Give us a quick background. How did weed law…because I’m going to call it weed law because cannabis—
Matthew Buck: You can call it whatever you want.
Sam Glover: Yes. How did weed law become a thing? Like, as a practice area?
Matthew Buck: That’s a good question. My boss, Rob Corry, made his way to Denver, Colorado, and I guess through happenstance happened to take some sort of marijuana case as it was becoming legalized in 2000 in Colorado. I’ll give a brief history of the scheme in a second.
Sam Glover: Yeah.
Matthew Buck: He took a cannabis case and was successful, and that led to more and more people knowing that he was the go-to guy for marijuana. I would say that given that we were the first state to legalize, he probably is the first marijuana attorney. I don’t know who else could make the claim because all of the other competitor firms are pretty different as far as what they do. So, for his purposes, it was just being in the right place at the right time and knowing the right people. As far as how I ended up there, he’s kind of not a run-of-the-mill attorney, and I’d always wanted to work for him, and I saw there was a job opening at his firm, so I was in a partnership—dissolved my partnership—and applied for the job and got it among other people that wanted to be there.
Sam Glover: Wait. You cut ties and dissolved the partnership before you applied for the job?
Matthew Buck: Yes.
Sam Glover: That’s ballsy.
Matthew Buck: Well, it was kind of kismet that the job opening was there because he and I are very similar kinds of bombastic, don’t really give a care…I’ll censor myself because I’ve just got a sailor mouth over here, so-
Sam Glover: Oh, we swear all the time. It’s fine. Yeah. Go for it.
Matthew Buck: Oh, we do? Okay, then I did not give a fuck about what was going on, and that I wanted to work for him. Prior to the job opening, I had been working on a motion to reopen…Prior to doing weed law I did immigration and criminal law, and I was a immigration lawyer on a case, and the criminal lawyer was sitting in court waiting for my current boss to have a fight with a DEA agent on the stand who was refusing service. Usually, they’ll just duck it through their attorneys, but he was attempting to serve him a subpoena for some sort of documents, and there was a big hubbub, and I was like, “That’s what I want to be doing. I don’t want to be doing immigration law. This is boring.”
To get back to what this scheme is—or how marijuana law even exists—in 2000 the wise voters of Colorado passed something known as Amendment 20 colloquially. Which is an amendment to the Colorado Constitution—Article 18, Section 14—was this specific provision that at that time it allowed for people to open up medical dispensaries that were non-licensed, and it also allowed for people to personally use, possess, and cultivate their own marijuana in their homes, or in properly related structures which at that point back in 2000 would have practically been any industrial building. Since then the legislature has done their best to try and erode all of the personal liberties given us by the wise voters in 2000.
Sam Glover: Okay, so this is clearly preempted by federal law, right?
Matthew Buck: Yes. Supremacy clause. Yeah, so this is all federally illegal.
Sam Glover: So, is your practice representing businesses, or representing individuals in criminal cases, or both, or how-
Matthew Buck: Damn, brother, what don’t I do? If you like weed I will take your money and do something with it.
Sam Glover: Got you.
Matthew Buck: Here is a wide swath of the cases that I’m current…Not just cases, but things I’m currently doing.
Sam Glover: Yeah.
Matthew Buck: I have people who are wanting to get into the marijuana industry, and they don’t know what to do. There’s two people that I get with that niche. One of them is, “I have a lot of money, and I know that marijuana is a way to make a lot of money,” so they think. They say, “Can you help me put together a team of people top to bottom that can help me open up some sort of marijuana business, and can you help me decide what kind of marijuana business I want to run?” I say, “Yes, I can.”
Sam Glover: That’s more like business strategy consulting even. Not even law practice.
Matthew Buck: Yeah. It’s not law. Someone that was not a lawyer can, and people do do that are not lawyers in Colorado. Now, do I think that they abut against the unauthorized practice of law by filling out forms and telling people how to fill out forms? Yes.
Sam Glover: Yeah.
Matthew Buck: Because the forms are legal documents, and they are not lawyers, and they are not trained to read contracts, and they’re really not trained to write contracts, but they’re doing it. So, that’s one avenue that I do. The second one that I would do is, “I am really good at marijuana, and I’m on a budget. Can you help me find out what I can do with my meager budget?” I would say that in-
Sam Glover: It’s like a home grower.
Matthew Buck: Well, this is a current home grower—or drug dealer maybe—that wants to get legit.
Sam Glover: Or baker?
Matthew Buck: Could be a baker. I would say that our firm rarely deals with people—and I don’t know why—that are edible manufacturers that want to get legit. I think that’s maybe because it’s a small subsection. I do have a couple clients that were like, “I can make XYZ confectionery product. Can you help me get legit?” and I was like, “Yes, I can.” The other one is, “If I am good with weed and I have X amount of money, can you help me start a business, or can you put me together with investors?” That’s something else we do. That’s kind of like the business avenue. We do a regulatory avenue.
There’s a large—I don’t know what you want to call it—I guess it’s a large subsection of the Department of Revenue that regulates marijuana. They go by the name of MED, which would be the Marijuana Enforcement Division. There are maybe—I don’t know it’s hard to say because there’s a lot of turnover because it’s not very satisfying and presuming—but there’s probably about 50 former cops that work in the regulation industries. They’re all post certified, law enforcement professionals that assist people in becoming legal and investing in their businesses.
If you run afoul of MED regulations, we can defend you if you are brought before the Attorney General…Well, technically, the Attorney General acts as attorney for the state before an administrative law judge, an ALJ. We do ALJ representation, and before ALJ representation we help you get regulated because the regulations are…man, brother, they could be more than 800 regulations each with its own subsection, so it will be…M-607, for example, regulates marijuana-infused products. That’s anything from hash oil to cupcakes to soda pop. That one rule has probably 10 different subsections written by someone—I don’t know who.
Sam Glover: So, it’s like regulatory violations and licensing.
Matthew Buck: Yes.
Sam Glover: You’re doing business formations.
Matthew Buck: Yes.
Sam Glover: You’re helping with running investment rounds. You’re bringing together businesses and strategizing.
Matthew Buck: Yes. We are advising whether investments are legal because the current scheme—as of January 1, 2017—now allows for out-of-state ownership where it didn’t prior to January 1, and does not allow for foreign ownership. There are people from out of country who have met with me like, “I want to get in the marijuana business.” I’m like, “I’m sorry, buddy, but you can’t because there’s no way for a non-US citizen in Colorado to be owner of a marijuana business.” The last subsection we do is criminal defense of those who—I guess we do some civil defense although that’s its own story—but we do criminal defense of people charged with marijuana defenses. I think that’s our—I wouldn’t say it’s our bread and butter—but it’s where our name was made in successful defense of people who have been illegally charged with cultivating marijuana, distributing marijuana, manufacturing-
Sam Glover: What does that look like now, though, that most of this is legal? Like, what would a marijuana-related offense be now?
Matthew Buck: The classic case is someone has a…they will call it a license. I would call it a red card and what that is, is under Amendment 20, you can go to a doctor and get a physician’s recommendation for a certain amount of plants, and they will give you an amount of plants above six—which we call an elevated plant count—for certain illnesses. Let’s say that you have spinal cancer and you are in constant pain, prior to April 2016 you could get what we called a 99-plant count recommendation, and that would allow you to cultivate 99 plants in your own home, or to have someone else cultivate plants for you as long as they did something besides just give you marijuana. That position is what’s known as a caregiver.
Let’s say that you actually have spinal cancer. You’re probably not super mobile, and you’re not attending to 99 plants which would take up about 1000 square feet of a basement. That’s a lot of moving around. It’s a lot of work, labor, putting soil in, water, nutrients, etc., trimming. It would be a lot of physical output for someone with spinal cancer, or AIDS, or any kind of cancer, leukemia, etc. So, you can let someone grow your plans for you, harvest them, and then give you the marijuana, and then compensate them for their time.
Sam Glover: As long as they also help you get dressed in the morning or something?
Matthew Buck: Correct, or do anything othee…The way the law reads—and it’s pretty broad—is that you may not be a mere delivery system for marijuana if you’re a caregiver. As long as you have something. I always tell people if they are going to care give, do actually care give. Make meal plans, exercise plans. Many of my clients who are also caregivers drive their patients to the doctor because a lot of these people that are using marijuana are either opiate-sensitive or have issues with taking medication other than marijuana because there are practically no negative side effects to marijuana. As far as opiates go, there are a litany of serious side effects, and people don’t want to take oxycodone.
Sam Glover: Yeah. You can take, essentially, opium, or you can take a mild dose of marijuana.
Matthew Buck: Exactly. You could eat a chocolate, or you could eat something that causes your skin to feel like it’s falling off. It’s a pretty obvious choice for some people, but eventually, we’ll get to 50 state in med, and get to 50 state legalization. To get back to the criminal case that stems from what’s the classic case is someone will get one of those RED cards, and they will get like a 36 plant RED card. The police will come because the neighbors complain about odor, and they come in and lo and behold there are 670 plants in the house, and there are 45 pounds of finished, trimmed marijuana in vacuum sealed bags next to USPS envelopes, next to a scale, next to a list of addresses that are out-of-state. Now, that’s not a case that I see frequently, but that would be what a criminal case is because the section related marijuana—which is 1818406 in the Colorado Revised Statutes—says that, “Anything over six plants is a misdemeanor. Anything over 30 plants is a felony.”
Sam Glover: Unless you have that exemption?
Matthew Buck: No. Not even then.
Sam Glover: Oh.
Matthew Buck: It says that the elevated plant count RED card is on a permanent defense to prosecution. It is not an exception to prosecution. This state—unlike maybe California, their laws are little dodgy—but this state does not have an exception. You could be charged even if you are legally growing, and there’s no proof at all of distribution. You can get charged with felony cultivation which is pretty serious. Felony cultivation would be a drug felony 4. You could serve a year in prison, which is if you have cancer it probably going to be a death sentence for you. But that’s what our average criminal cases is, is someone has a RED card or multiple RED cards, and they have more plants than that or, alternatively, they get caught shipping marijuana out-of-state, and that’s a pretty cut and dried…Your RED card limit ends at the state border. It doesn’t cover you in Kansas, or Texas, or Florida.
Sam Glover: Now that we’ve got a kind of background, let me take just a few minutes to hear from our sponsors. When we come back, I want to talk about how you navigate the ethics—the professional ethics—of representing people who are doing clearly illegal things at one level but legal things at another level. We’ll be right back.
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Okay, we’re back. Matt, tell me, it is all legal in various ways in Colorado, although as you just told us there’s some interesting interplay of being illegal, of federal offenses, whatever, but how do you ethically advise people who are to do an illegal thing? I mean, it feels like, yes, you could murder this person, but if you do it in this way, it’s legal in this way maybe it’s not. We can’t really advise people how to break the law, so how do you navigate that?
Matthew Buck: Well, it’s twofold. First off, as I tell every US attorney when I’m dealing with them in a federal case where I have no defenses, that if slavery was legal I would still advise people how to help escaped slaves remain free because I think it’s our moral imperative that we do things that are moral, and I think that prohibiting people from using medication which we know works—which we would have more peer view journal studies showing that it worked—if the federal government didn’t make doing the studies so difficult. So, keeping people from the medicine is, to me, immoral, and I will always help them.
Even if I didn’t have the second part of this which is that the state of Colorado in a decision in I think 2012 or 11 said that we are allowed to advise them up to the limits of what is legal and illegal in Colorado. That we cannot advise them how to break federal law, but we can advise them what the laws are in Colorado because otherwise, they’d be flying blind. Our job as lawyers is to help people navigate what is a very complex legal system. Specifically, this legal system is very complex because the regulatory body is so ever-changing, that I would say that maybe every month we get a new rule, rules change.
For example, in 2015 they released something that said that you could no longer keep marijuana overnight if you were delivering it, and to do so would be a violation of regulations. Which was a two-parter because they also said, “You can’t hire someone to be a marijuana delivery person.” It effectively meant that people had to deliver their own marijuana, and they had to get every delivery done in one day because to leave it in their car overnight could put their license at jeopardy. Some of these licenses are worth a couple million dollars a month, and that’s a pretty significant chunk of money. Certainly, it’s more than a liquor license, and it’s probably up there with having a brewery. I don’t think, barring some of these large microbreweries, the small local breweries aren’t making two million dollars a month. They’re not having a $10,000 afternoon, or a $20,000 morning.
Sam Glover: Now that you just mentioned, I’m curious, are there people who would otherwise start a microbrewery—which is huge in Colorado obviously—that are like, “Yeah, you know what? Maybe weed is the way to go. Maybe I’ll start a small weed operation instead of brewing beer?”
Matthew Buck: I have never had someone that came to me and said, “I was going to start this but not that,” but I have multiple clients who own breweries who also own marijuana businesses.
Sam Glover: Oh, that’s an interesting crossover.
Matthew Buck: Well, I think if you’ve navigated a regulated industry, and you have business sense of how to run a business which a lot of people don’t have. They can grow marijuana, but they don’t know about inventory, and employees, and staying regulated. So, if you’re already doing it with alcohol then it’s not that unnatural to me because I feel that, like it or not — because some Coloradans don’t like marijuana — but like it or not marijuana and beer are both part of the culture-
Sam Glover: Wait a second. Is anybody selling like marijuana-infused beer? Like, cannabeer?
Matthew Buck: It’s not legal.
Sam Glover: Oh. I thought I might have just invented like a brilliant thing.
Matthew Buck: No. We already had that idea, and also you cannot combine caffeine and marijuana.
Sam Glover: Interesting.
Matthew Buck: It’s very regulated what you can put in there, and the regulation of not mixing alcohol and marijuana comes from the marijuana side, not from the alcohol side. There is a product which is hemp vodka which we have a bottle of in our locker room freezer, but that’s the only liquid that I’ve seen. I had a client that wanted to make—I won’t disclose what the product was—but he wanted to make a product that combined the two other products, and it was not allowed. You can’t have nicotine and marijuana gum, for example. That’s not the product, but that’s one thing that I had the idea of. Because I think if you are involved in the industry you’re going to have an idea yourself, and that was my idea. I thought that would be a slam dunk, but the regulations of working with nicotine are too much, and they just don’t let you mix drugs. Which I think is a smart idea.
Sam Glover: Yeah.
Matthew Buck: THC is a pretty potent chemical onto itself, and we don’t need to add other things to it. It’s enjoyable by itself.
Sam Glover: Let me ask you about some of the practical realities of representing clients in this area. It’s my understanding that banking becomes very difficult because most banks are federally regulated, and that’s where you can’t launder money that was gained illegally. I’m probably just glossing over all of the important details, but do your clients just drop off bags of cash, or have they figure out a way to manage all of this?
Matthew Buck: That is a very good question. I think that the issues with banking are not as widespread as they were probably five years ago. Right now, if someone came to me and said, “I need to put money in the bank.” I could give them a list of five different banks. Not just branches, but actual banks with multiple locations that would take their marijuana cash. That has prevented what we used to have which was people sitting with $1 million of cash in their house which we don’t want. As a society, I think that we don’t want to attract people that are going to know that if you own a marijuana company you’ve got cash in your home. Banking is fine, but we were lagging behind in ways to take credit cards.
The way that they take credit cards now is an end around. For example, Square—the credit card processing service—they will not give a Square account to a marijuana company, but there is credit card services, specifically because we want to avoid money laundering, and if you have $1 million in cash, and I can tell you from—not my personal experience but from client’s experience—you can’t do a lot with $1 million in cash. You can’t buy a home in cash because the title companies locally—and I’m guessing nationwide—will not take unseasoned funds for a home. If you can’t show the providence of where your $500,000 came from to buy a home, they won’t accept it. They want you to put it in a bank.
Sam Glover: For some good reasons apart from—
Matthew Buck: Well, I mean, it does say for all debts. That’s a debt technically. I mean, you’re—
Sam Glover: Yeah, but there’s nobody walking around with $1 million in cash who’s gotten it legally.
Matthew Buck: Well, not federally legally, but prior to—
Sam Glover: That’s what I mean. Right.
Matthew Buck: …2015 there were plenty of people in Colorado that had $1 million cash, didn’t know what to do with it, and that’s why you saw some of the dumb early adopters flaunting their wealth with sports cars, machine guns, etc.
Sam Glover: Because they were just trying to dump it into something to hold it other than cash.
Matthew Buck: Because you can’t put it into gold because they are required reporters also. Pawnshops, they take more than $10,000, they have to fill out the form — I think it’s 1083 — that says I took more than $10,000 cash. You don’t want that kind of name out there because you still are violating federal law, and prior to the Cole Memo—which stated that the feds were not going to interfere with people that were operating legally—there was a realistic chance that the federal government was going to come in and start arresting people that were violating federal law. Thankfully, that has happened to one person that I’m aware of that was not violating another federal law other than the Controlled Substances Act.
Sam Glover: Has Bitcoin become part of the solution at this point?
Matthew Buck: There are dispensaries that have Bitcoin ATMs at their locations, but I think that there’s a barrier to entry of knowledge for Bitcoin’s and it’s difficult. Even I, with a giant doctorate of law, still can’t figure out Bitcoin’s. There is no good way to transfer them, and I think maybe because they’re trying to keep it a secure currency they don’t want to be easy, but other than going to a physical Bitcoin ATM—and converting cash to a Bitcoin there—I think there’s a barrier to entry where the average person is not going to want to have them around because they really only have…Well, there probably are some legit purposes I don’t know of but other than…The only purpose I know of is to buy drugs in the dark market and so—
Sam Glover: I mean, there is, but similar to giant bags of cash, most people with giant wallets of Bitcoin have gotten it by selling drugs.
Matthew Buck: Or maybe they were early adopters that had a mining machine, and they-
Sam Glover: Yeah. That would be the one exception, but now they’re probably using it to buy drugs.
Matthew Buck: [inaudible what can you do? You can’t really do a lot with a Bitcoin. That’s why I think they haven’t…Well, those—
Sam Glover: You can take out hits on people, you can buy drugs, and you can buy illegal pornography.
Matthew Buck: You could probably buy illegal firearms.
Sam Glover: Yeah. There you go.
Matthew Buck: That’s the other problem with the darknet is that you have to be smart to get to it. I don’t even know what it looks like, but I’m imagining it looks like eBay, and you can pick…I don’t know. Who knows what—
Sam Glover: Yeah. It’s pretty undark to look at actually.
Matthew Buck: Oh really. Okay.
Sam Glover: Yeah. Lots of this stuff is essentially at the whim of the federal government. Which makes me wonder if it would be wise to use some protections around communications and data storage. I’m wondering if you do, and take extra steps to protect your client’s communications and information? If so, what do you use?
Matthew Buck: We don’t do anything with that. We use Gmail as our backend, so we would use Google apps for our business email. I can’t remember the last time I discussed anything over email with the client. I would say that 99.9% of my communications are face-to-face because I don’t have clients out of the state of Colorado. We don’t discuss anything. I mean, if I look at my email now most of my emails to clients are, “Can I come see you at blank date?” and I say, “Yes, I have time on blank date,” and they come in. So, we never discuss—other than criminal discovery—I would say the word marijuana does not appear in my email.
Sam Glover: So, it’s not such a deliberate thing, or it is, and you’re just having those conversations face-to-face as a way of keeping them out of your information stream?
Matthew Buck: It’s not deliberate. I’m pretty verbose—as this may or may not show—and so they know they are going to get a better answer. Oftentimes, if we’re dealing with … My clients don’t come to me with quick hit questions. They come to me with difficult questions that they don’t want to have a 30-page email response to. They want to sit down for an hour, and then often times if I need to give them written instructions, I’ll physically print and give it to them on the way out. That’s not intentional because of security. It’s just because they don’t ask for it.
We don’t discuss anything… guess the one exception to that would be when I’m working with clients to get their business up and running. Multiple municipalities require like an operational guide of how you’re physically going to work with the marijuana. In that instance, we’ll provide that in writing, and I will work on drafts of that with the clients, but that comes from municipalities. Barring the lawsuit that’s currently going on in the Tenth, municipalities have here to far been immune from any sort of liability related to their participation in the marijuana industry.
Sam Glover: Do you worry about the federal government just doing a 180 and saying, “You know what? We are done. We are done tolerating this. We are just going to crackdown?”
Matthew Buck: I didn’t until we elected a chimpanzee as president, and he nominated Jeffrey Sessions as his Attorney General nomination. I had no worries until November 8, 2016, I guess. That doesn’t work for the country. When they announced Sessions, I became worried because of his previous positions on marijuana are effectively that…He’s on record as saying something very literally close to, “No good people use marijuana, or no good people smoke marijuana.” When he was, in 2013, interviewing the new DEA head—was confirming that position basically—that marijuana was not good, it had no medical benefits. Even President Obama’s last Surgeon General was on the record as stating that there was no medicinal benefits to marijuana which is A, a ridiculous claim, and B, it was obviously politically motivated. So, do I worry about it? Yes, I do worry because—
Sam Glover: What would that even look like? Is it more like, “Hey, Colorado’s starting on, you know, July 1 we’re going to start arresting people, and we are going to bring the DEA in, and we are going to start shutting down operations,” or is it more just like one day everybody starts showing up, and they start arresting people?
Matthew Buck: I would guess they’d give a warning. In 2013 the state of Colorado sent out mass notices to dispensaries that were within 1000 feet of a school that, “You need to shut down, or we’re coming.” Literally, every single person complied. I’m guessing given that these aren’t — whatever your worst stereotype of what a stoner is which to me is like a beard, and dreadlocks, and smelly, and like a Rasta hat, and like a Bob Marley T-shirt—that is not people in the industry today. It’s a multi-billion dollar industry. There are very few small shops left. There are a lot of people who are conglomerates. They own 10 licenses, 20 licenses. They own the property that their buildings are in, and commercial property here is incredibly valuable. They might own $100 million in buildings let alone what their business is worth. So, those people if told, “Hey, it’s time to shut it down,” they would just shut it down. They are entrepreneurs. They would find whatever the new way to make money was.
I know for a fact there are not the law enforcement resources to shut it down, and I know that because one of my clients was engaged in lawful business in the state of Colorado, and they believe that he was also engaging in unlawful business in also the state of Colorado, and they sent every FBI agent they had to raid his personal property and his businesses, and there are so few federal law enforcement officers in the state of Colorado that they had IRS agents in tanks on his property. Which I find laughable, but it’s also true, A, and B, when you got to get the IRS cops involved you might be a little light on the staffing.
Sam Glover: Yeah. The practical reality is they can’t do much in the short term anyway.
Matthew Buck: No. There is probably…There is over 500 dispensaries in Denver alone. So, the state of Colorado there are probably around 750, and then there are ancillary buildings that are associated with those that are also licensed. They’d need to bring in…Just, if you look at where we are. We are in the middle of nowhere. I mean, Wyoming might have four feds if it has that. Idaho. There’s just no states around that have a lot of law enforcement, so you’d have to see such a large-scale movement that would be so expensive that I’d have to think taxpayers would be upset that their tax dollars were being used on that.
I think they’d send letters out, and they’d shut it down, but I think when they sent letters out you would see a lot of us that practices form of law, and there are at least — I mean, people that actually do this and don’t just say they do this—there probably are at least 10 of us in the state of Colorado, would all file lawsuits on behalf of our clients, and it would just clog up the district of Colorado with temporary injunctions based on the letter, and I think we’d fight it out in court before they wasted valuable taxpayer dollars and had tanks at everyone’s home.
Sam Glover: By way of sort of wrapping up, let’s say you’re in a state like I am where medical marijuana recently became legal—and it’s not like legal and everybody’s doing it because they’ve made it pretty onerous—but how do you start building a weed law practice from that point? Because I assume, that’s basically the starting point is once you can actually have a valid business, that’s where you can start maybe building that brand as the local weed lawyer. So, how would you go about doing it?
Matthew Buck: That is a great question. Let’s take Washington DC for example. They have legal medical marijuana, and they have no marijuana attorneys because the restrictions are so onerous that you don’t need a lawyer for it because everything is so black and white. So, let’s say that you were in a state like Florida, for example, that just expanded their medical marijuana program. I think that what you would do is get out in front … Well, the problem is most people that say that they do marijuana law, for example, if you look at…I won’t name names because I get in trouble for that, but there are people who are out in front media wise and on the web as marijuana attorneys. They are just good-looking lawyers who say they do it, and they don’t really do.
If you look at what they’re actually doing, they are not really doing a lot in the court. So, I don’t really know…If you’re that kind of cannabis lawyer, I would say be really attractive and give interviews. That’s what you should do, but if you actually want to be boots on the ground is get to know your local —hate to recommend NORML because I just think they’re so inactive—but I think that a lot of the local NORML attorneys, which is the National Organization for the Regulation of Marijuana Legally.
I think it’s what NORML stands for. I’m not a member. Those guys are doing important work. So, I think get involved with NORML because they have good results, and people that get in trouble are going to Google marijuana lawyer, and they’re going to find NORML, and so then they are going to find you. Then we don’t do a lot of marketing. We are first page Google search because we’ve been around for so long and because we do so much, and we do so much because we been …It’s a horrible, legal chicken and egg if you want to do a certain kind of law.
For example, I wanted to do escort law about three years ago, and I tried to drum up business and talk to people in the industry and say, “Listen, if you are getting in trouble I will help you because I think that this should be a legally protected activity you’re engaging in.” They were just so averse to talking to lawyers because they’re always worried that it’s like, “It’s a cop. I think.” Because we have —thankfully in Colorado—we have a sex work union. Sex workers have a union that they can…I don’t know what they do. They don’t have a website obviously, but I’ve talked to the head of it, and I said, “Listen, we’ll represent you. I’d love to be your local counsel,” and it was just so difficult. The problem was there because I wasn’t doing anything, and people knew who I was, and I didn’t have results where I could show them, “Listen, this is how I could help you.” By the way, I’m undefeated in escorting cases.
Sam Glover: Nice.
Matthew Buck: Yeah, but those clients that wanted me to be trumpeting, “Hey, listen I was charged with—”
Sam Glover: But you have to build a reputation. You have to establish yourself as doing it; maybe you have to ride along on another lawyer’s reputation for a little while before you can build that and build some trust.
Matthew Buck: That’s what I did. I mean, I didn’t necessarily…’m not some huge warrior for marijuana, but I wanted to work for my boss. He happened to do this, and because of that, I have people that request to me specifically because we were just so simpatico that I started filing the same kind of suits he had been filing, and it works out. As far as if you wanted to start from scratch, I would say meet local people. Tell them if they have a problem you’ll help them for free. Then get someone acquitted. That’s the biggest way that you can earn reputation is either a not guilty, or even better than that—
Sam Glover: Winning.
Matthew Buck: … which we’ve done is have cases dismissed because of poor police work or whatever. The problem is the court decisions that keep coming out every year are eroding at what I think are simple liberties. For example, prior to last year it was pretty cut and dried that — or at least it was ambiguous—on whether odor could be probable cause of someone committing an illegal activity. Because marijuana’s inherently legal that six plants you don’t need a license. Any general citizen in Colorado—and in fact, you don’t need a citizen—the second you step foot in Colorado you have the right to grow six plants in your residence. Could you grow six plants in your Ramada Inn you’re staying at the airport? Probably not, but if you just move here—day one—you can start growing immediately. You can go to a local store and buy clothes. Because we know that that is legal activity, it’s not just decriminalized, it’s legal, anyone can do it, there’s no license, no exceptions, etc.
I thought it was pretty cut and dried that if you can just smell marijuana it’s not evidence of illegal activity. Then a case came out last year that said based on a combination of factors order can be one of the things that is evidence or probable cause of a crime being committed, and I just find it to be ridiculous. So, when you get things like that it makes it harder to fight people engaging in legal activity, and we still are seeing even in 2017—seven years after the legalization or at least decriminalization of medical use—overzealous policing as it relates to marijuana for people that are doing nothing more than exercising constitutional rights.
Sam Glover: So, get out there, network, meet people, and take cases and win some.
Matthew Buck: That’s good advice for every lawyer is win cases you take.
Sam Glover: Yeah. Well, that’s true.
Matthew Buck: Especially for free.
Sam Glover: Matt, thanks so much for being on the podcast today-
Matthew Buck: My pleasure.
Sam Glover: …and good luck with weed law.
Matthew Buck: Thank you so much.
Aaron Street: Make sure to catch next week’s episode of the Lawyerist Podcast. If you’d like more information about todays show, please visit lawyerist.com/podcast or legaltalknetwork.com. You can subscribe via iTunes or anywhere podcasts are found. Both Lawyerist and the Legal Talk Network can be found on Twitter, Facebook, and LinkedIn. You can download the free app from Legal Talk Network in Google Play or iTunes.
Sam Glover: The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by, Legal Talk Network. Nothing said during this podcast is legal advice.
Podcast #107: Niche Practice: Weed Law, with Matthew Buck was originally published on Lawyerist.com.