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Jun 2, 2015
Forbes - As of today, 23 states and the District of Columbia have legalized medicinal marijuana and four have legalized its recreational use as well. Despite that, marijuana remains a so-called Schedule I controlled substance – alongside “hard” drugs like heroin, cocaine, and LSD – and federal law still makes the distribution of marijuana a crime, even in those states where it is legal.
It is not unusual for legal marijuana businesses to become entangled in government investigations. Although it wasn’t my focus, as a former federal prosecutor I sometimes investigated unlawful drug trafficking organizations. Following the drugs and money back to their source increasingly led to marijuana businesses in states that had legalized it.
In many cases, the “legal” marijuana business was knowingly involved in the unlawful distribution. But on more than one occasion, legitimate marijuana businesses were victims of circumstance. In one case, for example, a licensed grower in California had a handful of workers who were diverting a portion of the crop to a criminal organization. In another case, a dispensary in Colorado was purchasing unlawfully-produced marijuana. In both cases, the guilty were arrested and the innocent business owners were not, but the businesses were adversely affected – each was the subject of a government investigation, its premises were searched by law enforcement agents, and its bank accounts and property were subject to seizure. In the case of the grow operation, for instance, law enforcement raided the farm and seized all of the plants on the property as well as all of the marijuana being processed. It is simply the case that all legal marijuana businesses remain subject to investigation and potential prosecution so long as marijuana is illegal at the federal level
. Companies without stringent compliance programs are particularly at risk.
As a result, virtually every bank of any size has decided not to do business with legal marijuana companies
, concluding that the so-called “regulatory risk” outweighs the benefits of doing business with them. This is a perfectly rational conclusion. Banking marijuana businesses is not especially profitable; it typically involves hosting checking accounts and making relatively small loans. On the other hand, regulators and law enforcement have recently imposed a series of multi-billion dollar penalties on banks for failures in their anti-money laundering (“AML”) obligations – that is, their responsibility to detect and report suspicious financial transactions. In addition, banking marijuana businesses carries with it the regulatory burden of filing Suspicious Activity Reports, or SARs, for virtually every transaction, as well as the heightened risk of investigation or seizure. Banks can hardly be faulted for turning away marijuana-related customers.
Major law firms, ever risk-averse, have also decided not to advise marijuana companies. One state’s bar (Maine’s) has even said that it would be unethical for a lawyer to advise a marijuana company, on the theory that doing so would constitute advising a client to violate the law. Ironically, medical marijuana is legal in Maine, meaning that legal marijuana businesses are required to navigate Maine’s state-specific regulatory scheme without the assistance of a Maine lawyer. While the other state bars that have considered the question don’t go that far, most major law firms have decided that the risk that they will be deemed an aider and abettor of criminal activity makes advising marijuana businesses untenable.
The result is that legal marijuana businesses are forced to deal primarily in cash
or, if they’re lucky, with the handful of small, local banks that are willing to bear the regulatory risks. Similarly, they are typically advised by local lawyers – often criminal defense lawyers who have developed an expertise in marijuana law.
While smaller banks and local lawyers are certainly capable of handling that business well and responsibly, they lack the resources and often the sophistication of larger operations. Large regional and international banks, for example, have extensive AML controls, including well-staffed compliance functions and state-of-the-art technology. Similarly, national and international law firms enjoy the wider perspective that comes with representing not only marijuana businesses, but also the other industry players – banks, investors, and the like – that have an important voice in how legal marijuana businesses conduct themselves. Large law firms also have expertise in other matters that may weigh heavily on legal marijuana businesses. For example, legal marijuana businesses face knotty tax problems resulting from the drug’s federal status; sophisticated tax lawyers are in the best position to help them navigate these complicated waters.
The lack of access to banks and lawyers is a problem not only for legal marijuana businesses, but for regulators and law enforcement, as well. Though marijuana remains a controlled substance, legalized marijuana is a reality in many states – and arguably an inevitability, even at the federal level – and it is in the government’s interest for companies in that market to have robust compliance programs. Likewise, the government has no desire for marijuana businesses to be conducted in cash: the use of cash makes it significantly harder for the government to trace the proceeds of the marijuana businesses, not to mention the fact that businesses that deal in large volumes of cash present opportunities for robbery and other crimes of violence. But for marijuana money to be both traceable within the legitimate financial system and subject to stringent compliance programs – both within the marijuana businesses and at the institutions that handle their money – means having access to banks and lawyers.
Even the federal government has recognized the importance of access to professionals. In August 2013, the Department of Justice issued guidance to prosecutors, instructing them not to prosecute people or entities for marijuana crimes so long as they operate within the confines of valid state regulatory schemes. Following that, early last year, the Treasury Department’s Financial Crimes Enforcement Network, or FinCEN, issued guidance to financial institutions informing them that banks and other financial institutions “can provide services to marijuana-related businesses consistent with their [AML] obligations,” so long as they take an appropriate risk-based approach. FinCEN also lightened the regulatory burden on banks doing business with marijuana companies, allowing them to submit abbreviated Suspicious Activity Reports for marijuana-related transactions. According to published reports, FinCEN officials are also meeting privately with bank executives to “remind them” about the marijuana guidance.
The issue has also gained traction in the legislature. Although Congress is not yet prepared to de-schedule marijuana
– though a bipartisan bill was introduced in the last Congress to reclassify marijuana as a Schedule II controlled substance, which would recognize its medical uses and, among other things, expand the opportunities for in-depth scientific research – Congress has voted to withhold funding from the Department of Justice to enforce the marijuana laws in states where it is legal. Similarly, a bipartisan Senate committee voted just this month to allow Veterans Affairs doctors (i.e., federal employees) to help their patients who want to use medical marijuana, in states where it’s legal. The amendment was sponsored by a Montana Republican and an Oregon Democrat.
Until marijuana businesses have regular access to the financial system and can turn to a broad array of sophisticated lawyers for counsel, they will remain half-way in the shadows. This is by no means an argument for legalizing marijuana; it doesn’t have to be legal for marijuana businesses to have access to professional services. Last month, the Marijuana Business Access to Banking Act was introduced in the House of Representatives; among other things, it would prohibit banking regulators or criminal prosecutors from investigating or penalizing a financial institution for “providing financial services to a marijuana-related legitimate business.” Congress could easily pass similar protections for lawyers. Doing so would recognize a basic proposition: when a bank or a lawyer provides services to a legal marijuana business, it is not helping that business to break the law. To the contrary, lawyers and banks – especially sophisticated and responsible ones – help businesses to comply with the law. That helps the marijuana business and government alike.