Month: February 2017

Physicians, marijuana, the new DEA, and the Oregon Medical Board

Posted on February 24, 2017 by - DEA Prosecutions, Licensure

Physicians beware: marijuana may complicate your professional life

I earlier wrote about marijuana, the practice of medicine, and the Oregon Medical Board, cautioning physicians that regardless of state law, marijuana is still a Schedule I banned substance under federal law, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose under federal law.  Consequently, I cautioned physicians not to become complacent when recommending marijuana for medical use and not to confuse compliance with the Oregon Medical Marijuana Program (OMMP) with meeting the applicable standard of care.

Admittedly, under former Justice Department policy, federal law has been lightly enforced and in those states where marijuana is “legal,” a lax attitude prevails among the general public.  For those of us that possess professional licenses, however, we are often held to higher standards and this seems to be particularly true for Oregon physicians, whether they are recommending marijuana for medical use, or consuming marijuana in their off time.  This point was hammered home earlier this month when I represented two physicians during their Investigative Committee (IC) interviews at the Oregon Medical Board.  One physician had recommended marijuana for medical use.  Although he had strictly complied with the Oregon Medical Marijuana Program (OMMP), the Medical Board’s concern was the standard of care.  The other physician had never recommended marijuana for medical use, but he had admitted to personal use, and not always in a state where it was legal under state law.  Both physicians were honest and forthcoming, but marijuana had complicated their professional lives, something we all want to avoid.

Physicians, the times they are a changing: the new DEA

The times are not getting any easier for physicians recommending or using marijuana.  New Attorney General Jeff Sessions, who heads the Drug Enforcement Administration (DEA), has long opposed the legalization of recreational marijuana and yesterday, Sean Spicer, the President’s press secretary, explained during his daily press briefing that under the new administration we can expect “greater enforcement” of federal law banning the recreational use of marijuana even in those states where recreational use is “lawful” under state law.  I suspect the Oregon Medical Board was not surprised. During a side conversation earlier this month, a Medical Board investigator commented this might happen under the new administration and, a few weeks later, it did.  I think it is safe to assume that in this new era, the Oregon Medical Board will have still greater concerns about the recreational use of marijuana by physicians in any state, including Oregon, where it is “legal” under State law but still a Schedule I banned substance under Federal law.

Oregon Court of Appeals reverses trial court in my clients’ favor – Wills and Estates

Posted on February 24, 2017 by - Appellate

Appeal and cross-appeal

This is a case I took up on appeal for another lawyer, and won a reversal – the Court of Appeals affirmed the trial court’s rulings in our favor and reversed the trial court’s rulings against us, a complete victory for our clients.

I represented the Knudsens, who had been sued by the Grimstads over an inheritance. Three key legal claims were at issue. The trial court awarded the Grimstads part of the Knudsens’ inheritance under claims of (a) unjust enrichment and (b) money had and received, but denied the Grimstads’ claim of (c) intentional interference with prospective economic advantage.

Both parties appealed, resulting in an appeal and cross-appeal. On June 9, 2015, after extensive legal briefing, the appeal and cross-appeal was argued to the Oregon Court of Appeals.

The Court of Appeals’ opinion

One and one-half years after oral argument, the Court of Appeals issued a complex 29-page opinion, ruling in my clients favor and against the Grimstads on all claims. See Grimstad v. Knudsen, 283 Or App 28 (December 21, 2016). At the end of its opinion, the Court of Appeals favorably concluded as follows:

“In sum, we conclude that the trial court erred in concluding that the [Grimstads] proved a claim for unjust enrichment, because [the Grimstads] failed to show that they had any legal or equitable interest in the proceeds of the sale of the [real estate]. For that same reason, the trial court erred in concluding that [the Grimstads] proved their claim of money had and received. The trial court therefore erred in granting plaintiffs relief on those claims. On cross-appeal, [the Grimstads] failed to put forward evidence to create any genuine issue of material fact with respect to the improper means or purpose element of their intentional interference with prospective economic advantage claim. The trial court therefore did not err in granting [the Knudsens’] motion for summary judgment [on that claim].”

See Grimstad v. Knudsen, 283 Or App 28, 58 (December 21, 2016) (reversing and remanding on appeal; affirming on cross-appeal).

Remand to the Washington County Circuit Court

This appeal and cross-appeal will now be remanded (returned) to the trial court for entry of a new judgment fully in my clients’ favor. As an aside, I predict this case and its opinion will become the new “name case” or “lead opinion” for claims of intentional interference with prospective economic advantage. Time will tell.