In-House Counsel

Advocating For A Toke Is No Joke For In-House Counsels

How should corporate counsel advise their clients when it comes to the legalization of cannabis for either recreational or medicinal use?

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As a large hospital network in our state, our physicians are often asked to testify before our state legislature as to the benefits or perils of a proposed piece of legislation.

Often times these are fairly routine asks on rather straightforward pieces of legislation, but our press and legal teams still screen each request and proposed talking points to ensure they mirror the values of our hospital, and are in line with current state and federal regulations.

A bill requiring children to wear helmets while they ride their bicycles? I have zero problem with our emergency room physicians sharing some of their horror stories while advocating for the efficacy of helmets at reducing the incidents of head trauma.

A proposal to raise the tax rate on cigarettes? That’s a quick green light for our oncology team to educate the legislature on the benefits of having fewer smokers in a state.

But when a request from one of our physicians to testify in support of a proposal to expand the use of medical cannabis recently hit my inbox, the normal perfunctory blessing was not something I was comfortable giving on my own.

In no way am I attempting to offer my voice to the legalization of cannabis debate for either recreational or medicinal use. I suspect that debate will rage on for years to come. Rather, from the perspective of in-house counsel, with a duty to ensure my client stays within the law’s good graces, this particular request required some additional thought and conversation amongst my colleagues.

On one hand, I had a request from a respected physician in our hospital system who wished to lend their expertise and credibility to a current bill being debated by our state legislature. I personally did not want to deprive them from hearing from a knowledgeable expert.

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On the other hand, allowing the physician to speak on behalf of our hospital could be tantamount to our advocating for a bill that would run afoul of federal law. And given the present administration in charge of enforcement at the federal level, this could be a risky proposition.

Ultimately, we opted to go with the somewhat obvious and lawyerly middle ground and we permitted our physician to testify in their individual capacity as a trained medical professional, but not under the banner of our hospital.

I am sure many of you may vehemently disagree with such a decision or think us spineless, and I accept that as fair and honest criticism.

However, as in-house counsel, my ultimate duty is to my client and to ensure I help them navigate potential legal pitfalls even if they may seem trivial or cause us to look stodgy. And with this edict as my raison d’être, I’m comfortable with our ultimate resolution.

After all, patients will still visit our hospital for their medical care even if they think we may be a bit behind the times or popular opinion.

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They, however, may not be able to visit if some state or federal regulator disagrees with our position and decides to make our lives a bit more difficult.

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].

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