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Copyright: squarelogo / 123RF Stock Photo

Election 2016

Marijuana ballot initiatives won big on election night 2016.  As recently reported in the Washington Post, voters in California, Massachusetts and Nevada approved recreational marijuana initiatives.  And, voters in Florida, North Dakota and Arkansas just approved new medical marijuana initiatives. Washington Post Article

Texas-84th Legislative Session

What is not as well known is that medical marijuana came to Texas in the last legislative session-in a small way.

As noted by the Marijuana Policy Project, the 84th Texas legislative session included five bills which would have reduced penalties for possession of marijuana (including one which would have made access for consenting adults completely legal.)  None of those bills made it out of committee and to a vote.  However, there were also four medical marijuana bills, one of which became law in Texas-the Compassionate Use Act.  Summary of Texas Bills

The Lawyer’s Dilemma

When the dust settles on the 2016 election, more than twenty percent of Americans will now live in states where recreational marijuana use is legal, and it now appears that 29 states will allow cannabis use for certain medical conditions-including Texas. See Fox Rothschild eBook summary of state-by-state marijuana laws

However, marijuana remains a schedule I drug, along with heroin, and possession or distribution remains a serious felony under federal law.

The professional rules of conduct in most states, including Texas, prevent an attorney from counseling a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.  How can an attorney counsel a client in the cannabis business under these conditions?

How are state bars and legislators dealing with the potential conflict in the law and ethical rules when cannabis has been made legal in a particular state?

The short answer is they are changing their professional rules of conduct in most cases.  My partner,  Joshua Horn recently wrote an excellent post on this topic-which you can find here- Post

A recent Gallup poll found that sixty percent of Americans are now in favor of legalization of cannabis use.  Gallup Poll

As Texas inevitably begins to cope with the realities of the inherent conflict between the existing state and federal laws in this area, and the trap posed by the rules of ethics, it will prove interesting to see how the Texas bar deals with this dilemma for Texas lawyers.

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Copyright: alexmillos / 123RF Stock Photographic icon




As most people who know me know, I am a registered pharmacist in addition to being a lawyer. After graduating from the University of Rhode Island College of Pharmacy in December 1992, and passing the Rhode Island pharmacist licensure exam in February 1993, I practiced pharmacy in various settings until graduating SMU’s Dedman School of Law in May 2003.

As part of the continuing education for my pharmacist license, I recently went to a continuing education seminar presented by the Institute for Brain Potential in which Martin M. Antony, PhD was the speaker.

During the presentation, Dr. Antony said that numerous studies point to poor communications by health care professionals as the most common factor leading to malpractice claims.

39054530 - portrait of cheerful female pharmacist chemist woman in pharmacy drugstore
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According to Dr. Antony, it is not a mistake that generally leads to a lawsuit; rather, it is poor communication after the mistake. The examples Dr. Antony gave were things such as health care providers avoiding his or her patient’s calls after the mistake because they know the patient is angry, failing to admit the mistake, and failing to say “I am sorry.”

The failure to apologize is an interesting point. Many lawyers advise their clients that in any in any situation, whether it is a car accident or a mistake in a health care setting, not to apologize and not to admit to anything, especially not fault.

While this advice certainly is applicable in many situations. The criminal context immediately comes to mind. But if a verifiable mistake is made in a health care setting, then there may be other strategies to consider.

The purpose of this blog post is not to give legal advice, and certainly is not to come up with a strategy for dealing with a pharmacist, physician or hospital mistake in less than 500 words. Rather, it is to suggest that health care providers should have a plan in place for dealing with mistakes prior to the issue getting to litigation, and to highlight that patient communication may be an integral part of that plan.

logo-colorI have been defending pharmacists against a multitude of claims for my entire thirteen years of law practice.  Many at Fox Rothschild have been doing it much longer.  We can help you come up with a plan for dealing with health care liability claims and/or mistakes.