Photo: Mitch M/Shutterstock.com

Marijuana wasn't legalized in New York this year for adult, recreational use because state lawmakers couldn't agree on a host of issues surrounding the drug, but now the New York State Bar Association says it plans to weigh in on that conversation.

More than two dozen attorneys with the State Bar's Cannabis Law Committee are set to examine the issue in the coming months to help provide guidance and inform lawmakers on some of their unanswered questions.

That analysis is expected to be more comprehensive than previous studies on legalization in New York, and will include angles that weren't considered until lawmakers began to seriously weigh the issue earlier this year.

"The potential legalization of adult recreational marijuana is an issue that should be thoroughly examined, and we hope to positively contribute to the debate over the merits of such a proposal," said Hank Greenberg, a shareholder at Greenberg Traurig and the current president of the State Bar Association.

Among the issues they plan to consider is a provision first proposed in January by Gov. Andrew Cuomo that would allow municipalities to opt out of commercial marijuana sales within their borders.

Under Cuomo's proposal, counties and large cities would be able to bar marijuana retailers from setting up shop in their jurisdiction. Use of the drug would still be legal in those areas, and the decriminalization aspect would also apply.

A handful of counties have already said this year that, if the idea was included in legislation to legalize marijuana, they would take advantage of the opt-out provision.

Brian Malkin, a co-chair of the Committee on Cannabis Law who specializes in food and drug law at Arent Fox, said they'll consider what municipalities have already said as part of their report, and take a look at what's happened in other states faced with a similar situation.

"Part of that is to look at what the different cities, municipalities or counties have chosen to opt out of, whatever might be planned in the state, and then look at if that's happened in other states and how they resolved it," Malkin said.

The report is planned to be far more wide-reaching than any single issue, and will mostly be informed by the attorneys who already sit on the panel. Many already have clients that are, in some way, involved in the cannabis industry, Malkin said, and are otherwise privy to the issue.

"There are people in the committee readily working with legislators on some aspects of the legislation," Malkin said. "I think we're pretty plugged in as a group."

Part of what ultimately sank efforts to legalize marijuana this year, according to legislative sources, were disagreements over how the drug would be taxed, and how the revenue would then be used. Some lawmakers had argued for more investment in communities adversely impacted by the state's drug laws. Others wanted more funding for law enforcement.

On that issue, the State Bar plans to consider how other states have taxed the drug. Malkin said it's going to be a difficult balancing act for state lawmakers, who may consider the ramifications of placing too high a tax on marijuana. That's led to some unintended consequences in other states, he said.

"The goal is that you don't want to tax it so high that you create these gray and black markets that take over, and the whole regulation ends up being something on the books," Malkin said. "We've heard in some states where they've created these tax structures, that all they did was create these black markets."

That, in some ways, gives New York an advantage. While it's behind a handful of other states that have already legalized marijuana, New York will now have an opportunity to see how their strategies played out, rather than move forward without any prior knowledge.

Aleece Burgio, the other co-chair of the Committee on Cannabis Law and special counsel at Barclay Damon in Buffalo, said they'll rely heavily on what other states have done while finalizing their report.

"We are basing a lot of our arguments on how other states have developed their policies," Burgio said.

They'll also look at issues that weren't at the center of discussions among state lawmakers about the drug's legalization this year. Those include, but are far from limited to, how cannabis-related products will be packaged and labeled, and how legalization would relate to medical marijuana.

"There's a lot of areas that we're trying to touch upon, and they reflect on our various expertise and abilities," Malkin said.

There isn't a list of specific issues on the table, as of now, that they plan to include in the report, he said. A lot of that will rely on what the committee's members bring to the table, and what they feel comfortable taking a position on.

It could be argued, Malkin said, that every area of law has a hand in the legalization of cannabis. Real estate lawyers may have thoughts on how farmers would use certain property to grow the drug, for example. Patent attorneys may be thinking about how they'll be able to trademark something when it's tied to a drug considered illegal by the federal government.

Burgio said they also haven't ruled out speaking to regulators and experts in the industry to identify possible pitfalls and successes. As was realized during last year's debate on marijuana in New York, there are countless groups and entities that have a stake in legalization.

They'll also consider the various legislative proposals already on the table, and those expected to come, Malkin said. He likened their analysis to a reset for lawmakers, after they failed to coalesce around any of the several legislative proposals earlier this year.

"The only thing that really did happen was the decriminalization of some possession of marijuana, so it's to take a step back and look at where we are now, knowing that next year there will be new legislation proposed," Malkin said.

The committee is expected to work on the report over the next few months, with a release date expected sometime next year as lawmakers resume conversations surrounding legalization.

➤➤ What does legalized marijuana mean for your clients? Check out Law.com's special report on cannabis.

READ MORE:

Legal Action Won't Be Needed to Expunge Low-Level Marijuana Convictions, Lawmaker Says

Marijuana Decriminalization Approved in NY After Legalization Efforts Stall

Marijuana Legalization Dead for Now in NY, Sponsor Says, But Decriminalization Still on Table