Raising the Bar: the International Cannabis Bar Association

Person standing in front of podium
Image: Mitchell Straub Photography

The cannabis reform movement has travelled a long and winding road in pursuit of freedom, liberty, and justice. The ultimate goal: the end of prohibition and expungement of criminal records for those whose lives were upended by the failed war on drugs. Grassroots public opinion has tipped the scales in the industry’s favor over the past several years, but much remains to be done. Because cannabis containing THC remains illegal at the federal level, laws and regulations compose a state-by-state and municipality-by-municipality patchwork of legislation. State and local authorities frequently shift regulations and requirements, making compliance a headache at best and a nightmare at worst.

The International Cannabis Bar Association (INCBA), formerly the National Cannabis Bar Association, aims to connect the legal dots for companies and individuals working in the industry. Like growers, processors, and retailers, cannabis attorneys are pioneers of a sort, building the legal structure of the industry from the ground up.

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INCBA was formed in 2015 “by a group of attorneys in San Francisco who recognized the legal community supporting the business interests of the cannabis industry needed a better way to connect, learn, and establish best legal practices for the industry,” Executive Director Chris Davis said.

Davis grew up in Berkeley, California, a fitting environment for an attorney who eventually would join a movement fighting for social and legal reform. During the 1960s, activists made the University of California, Berkley, the epicenter for several social movements that were considered radical at the time. The city and campus still are considered a primary hub for activism.

After law school, Davis moved to New York City, where he and a colleague attended a cannabis continuing education symposium. The event shattered his assumptions about the industry. “A group of eminently professional people filed into the rooms, and we were met with a series of panels that were informative and riveting,” he said. The event introduced him to future INCBA teammates: Shabnam Malek, founding president and current board member; Henry Wykowski, current general counsel for the association; and Lara DeCaro, a founding member. Wykoskwi spoke about Internal Revenue Code Section 280E, which prevents cannabis businesses from claiming tax breaks to which other small businesses are entitled. Malek spoke about intellectual property and branding within the cannabis industry, and DeCaro addressed issues small businesses face. Davis found his new home. “I was hooked,” he recalled. “I was expecting the hippy roots I remembered from Berkeley to come out in full force, but these attorneys were just as comfortable educating a room full of New York lawyers as they were hobnobbing with local pot growers in California.”

Thus impressed, Davis volunteered to write relevant legal articles and organize events in New York. After moving back to California, he assisted friends and family in acquiring cannabis business licenses pro bono. “The leadership of INCBA recognized me as a viable executive director, and the rest, as they say, is history,” Davis recalled.

INCBA serves as a centralized hub for attorneys who work with cannabis businesses. “Our primary goal is to make the practice of law more secure and efficient while making the professional lives of our members just a little bit easier,” Davis explained. To accomplish those goals, INCBA provides networking opportunities, education, and other resources. “We host social events where attorneys can come to meet and discuss professional issues that are facing their practice,” he said.

Four times a year, the organization hosts events focusing on specialized areas of practice, including regulatory and compliance issues vitally important for operators in the industry. Members of INCBA qualify for Continuing Legal Education credits at those events. Attendees at the organization’s annual Cannabis Law Institute in New York may choose from multiple tracks. Online forums also are available for members to discuss legal issues.

Of course, social justice is rarely a fight won within a single generation. “We have student resources to connect students with practicing attorneys to help train the next generation of lawyers,” Davis said. INCBA also sponsors student chapters at the University of Denver’s Sturm College of Law, University of Florida School of Law, and at the University of San Francisco School of Law. Davis has noticed interest from students as well as administrators, likely recognizing well-groomed attorneys in the field will be greatly needed in the future.

Building a network of attorneys and students across the country may be the best chance to make progress on the biggest legal challenges facing the cannabis industry. One of the biggest, at the moment, is lack of access to financial services. Thankfully, Davis said, we may have turned a corner on that front. “We have seen roughly 500 banks across the country get involved in the industry,” he said. “More and more federal lawmakers see the value of encouraging aboveboard banking in the cannabis industry.”

Other challenges revolve around the disastrous—and continuing—consequences of the failed war on drugs. “Criminal justice expungement at a local level should continue to be a priority,” Davis said. For those unfairly victimized by archaic drug laws, a clean legal record is simply not enough. “We need to keep in mind that remedying past criminal wrongs is only half of the equation,” he said. “We also need to create economic opportunity going forward. Historically disadvantaged individuals should be playing a role in this new economy.”

Cannabis laws involve much more than consumption rights. In 2017, INCBA filed its first amicus brief as an organization, joined by the Reason Foundation, Law Enforcement Action Partnership, Henry Wykowski Esq., and the Association of Cannabis Professionals. The appellate case involved one of its own founding members: Jessica McElfresh, who stood accused of concealing evidence during an investigation of her clients for allegedly unlawful cannabis production. The San Diego District Attorney’s office seized her electronic devices and claimed all files on the devices were covered by a search warrant. A judge sided with the district attorney, ruling all communications with any clients, whether related to cannabis or not, were subject to review by authorities.

The case had the potential to make fundamental changes in attorney-client relationships. Ultimately, the charges were dropped and McElfresh’s privileged communications remained private.

Davis said INCBA and its members still have a lot of work to do on behalf of an industry striving to legitimize and legalize, as well as on behalf of citizens victimized by archaic punishments for non-violent crimes that no longer are even crimes in some jurisdictions. But the legal environment gradually is bending ever farther toward justice. “The train has left the station,” he said. “There is still a ton of work to be done, but you cannot put a lid on the fastest growing economic driver in the country, and we should not want to. We need to consider how we want these markets to look, and we should shape policy to reflect the values that we want this industry to reflect.”

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