John Blomster: Welcome to 红桃视频, a 红桃视频 podcast where we discuss today's biggest legal topics with the law school鈥檚 distinguished guests and experts from around the world. I'm John Blomster. And today we're speaking with Dave Kopilak, shareholder at Emerge Law Group and primary drafter of Oregon Measure 109, a landmark piece of legislation that will create a legal regulated market for psilocybin-assisted therapy under Oregon law. Dave focuses his practice on business and corporate law, bringing his expertise to the world of cannabis law in ways that have really helped shape the legal framework around the industry in Oregon today. Measure 109 marks a truly first of its kind moment as part of an emergent, largely uncharted field of law. And we're really excited to learn more and everything that went into that. So, to that end, Dave, thank you very much for being here.
Dave Kopilak: Thanks, John. Glad to be here.
JB: So, first off, just a little bit about your background. How did you gravitate toward this field that today finds you on the cutting edge?
DK: Well, it was probably an accident. I worked at a large firm doing business, corporate mergers, acquisitions for 20 years. Along the way, I met a guy who I formed one or two companies for, he was in the Oregon's medical marijuana industry. And he ended up being pretty much the early funder of Measure 91, which was back, this way back in 2013, before Oregon's, you know, Measure 91. So, he asked me if I had ever drafted a piece of legislation before. I said, 鈥淣o, I'm a corporate attorney.鈥 And he said, 鈥淒o you want to try to draft something?鈥 And I said, 鈥淪ure, that would be amazing.鈥 And he had some money. And his mission was to, you know, put forth a ballot measure.
In 2012, Oregon had a ballot measure that failed for cannabis. Washington state had a successful measure. Colorado had a successful measure. And we were sitting here in Oregon wondering why that was. And we went right to work and kind of drafted a completely different measure for 2014. And that ended up being successful. So, it was all, you know, I probably owe it all to that one client who got me started and and along the way, I just got to know a lot of folks in the cannabis industry. There were almost no business lawyers in the space. All the lawyers were criminal lawyers, who were sort of the advisors under the old medical regime. The criminal lawyers kind of morphed into compliance lawyers, but once adult-use came along, everybody needed to form businesses. And back then, most law firms didn't want to go near that, including the firm I worked with. They were fine with me drafting the ballot measure, but they were not okay with me, representing actual clients who touched the plant. So, for that and a number of reasons I split off, formed Emerge Law Group. And in the early days, we were probably like one of the few firms who actually did business work for cannabis lawyers, or for cannabis clients, and then that just steamrolled and we had been going for that for a few years.
And then along the way, it seemed that psilocybin was kind of the next logical step. I met the chief petitioners for Measure 109. We kind of got together and I convinced them to let me draft Measure 109 based on my track record with measure 109 and then, you know, that's what we did.
JB: Can you talk a little bit about the background of the efforts of the movement to legalize psilocybin assisted therapy in Oregon?
KP: I had sort of conceptualized a psilocybin measure, and I wasn't sure how to draft it. I wasn't sure what I would do. But then thinking about what I might do, I found the Oregon Psilocybin Society, which was founded by Tom Eckert and Sheri Eckert , a couple who were therapists and who were basically going forward with a measure. And I had never heard of these folks before. And at first I was a little bummed out because I thought, 鈥淥h my gosh, I was going to do this and these folks have stolen my thunder.鈥
I started to go to their meetings, and they had these sort of group get-togethers and it was fairly well attended. I got into the scene a little bit, and then just introduced myself to them. And at this time, they already had a measure going, like they drafted a measure themselves, and they were probably years ahead of where they needed to be. And they had already started to gather signatures. I read the measure, and I was a little, I was very interested with the framework, but I thought the details, there's a lot to improve on.
So, I remember convincing or talking with Tom Eckert in my office and proposing to him that we redraft the measure. The stare he gave it me at that time was pretty, pretty funny because he's like, 鈥淎re you kidding me, like we already have a measure, we're already getting signatures, I've got volunteers running all over the place like you want me to cancel that and drafted another measure?鈥 And so he was understandably very reluctant. At the same time, some national funders, he started talking with them. And they had similar concerns. So, it was kind of again, a little bit of luck here, where I was saying, from the legal angle, we should improve it in these ways to make it more politically viable. And I just thought a better system. And the funders were sort of aligned. And some of the funders knew me from Measure 91. So, basically, we tagged, and Tom was very interesting, he said, 鈥淲ell go ahead and start it. But I'm not making any commitments about changing it.鈥 And so we drafted it, and then he eventually got on board. He called off the signatures. We put forth a new measure, went through the system that you have to do with the Elections Commission, and that became measure 109.
JB: Yeah, I guess we should back up just a second, what is psilocybin-assisted therapy? And why is this something that can help people?
DP: So, psilocybin is the psychedelic compound in certain types of mushrooms. It is right now, and for years now, there have been studies going on with the Food and Drug Administration, to basically test to see its efficacy in helping folks with certain mental conditions, including depression, addiction and others. The studies have so far been very positive. But psilocybin is a federal-controlled substances like cannabis still is. It's just against the law period, unless you go through that Food and Drug Administration trials. Now these things are going to take years. There's very controlled, small groups that are being studied. And it's all, it's all great. I mean, I think the medical benefits of psilocybin are, I believe, I'm going to say more tangible than cannabis, and just, it's looking really good. It seems from a long history of psychedelic plants that is generally safe. There are certain contra indications that folks might, they're important to know about. But based on the history of psilocybin, it seems safe enough. And so the psilocybin therapy is a way to basically legalize what is now illegal. And Thom and Sheri came up with a therapeutic model of delivery. So, unlike cannabis, where you walk into a store, a dispensary, and you have an array of products before you, you pick what you want, and you go home and consume it, most of us thought including Tom and Sheri, that that was not a safe way to do it for psilocybin. And so they came up with a therapeutic model where basically a person who wants to consume it would have to have a facilitator with them, someone to be there during the entire experience, and at a specified location. So, all of the psilocybin therapy is going to take place in a licensed location under supervision. And the processes could take hours. I mean, the process of consuming psilocybin and experiencing effects, this could be five, six, seven, eight hours long. So, you're there at a service center. That's the terminology we use. And that's where it all happens.
JB: What structures and strategies did you identify at the outset and throughout the process that you thought would be most effective?
DK: Well, I mean, once you have sort of a general framework, I think the strategies are sort of a combination of political and legal. And that's, largely, my job is to draft something that you try to make it as bulletproof as possible. One of the problems with Oregon's 2012 cannabis measure that failed was that it was just, it was kind of a sprawling piece of legislation. What I would say it didn't include protections that were necessary to convince the public that this was a safe step to take. I mean, the nature of a ballot measure is you're trying to convince the public to change the law. And the first question might be, well, why is that necessary? Why doesn't the legislature just change the law? Because it's a controversial topic. And because you're not getting any action at the legislature. And so you go to directly to the people. That's what a ballot measure is. I love it in Oregon, it's a fantastic legal process. And so, my job, I mentally kind of think of myself as some suburban parent who is relatively knowledgeable, who's relatively progressive, but I am not too out in front of people, and I need to get convinced that this is a safe thing to do, and a logical thing to do. And so to sort of build those safeguards, guardrails, so that when there's a campaign, I'm constantly thinking about, what are the opponent's gonna say? Where are they going to poke the holes? And I have to plug those holes or have answers for those holes. So, when you're drafting your, if we say this, what are people going to say? Where can they attack us? And then you have to consider that, consider all the contingencies and draft something that makes sense and it's a balancing test between the vision that the petitioners have and what you think is politically viable. So, every aspect of it is very interesting.
And then, you know, my other strategy was just to draft a long measure. Both Measure 91 and Measure 109 are extremely long. And my thought process there was to get in as much stuff as possible because the Oregon legislature can amend a ballot measure, like right away, and that's what happened with measure 91. And we pass it in 2014, the 2015 legislature went in, and they tinkered with it, they changed some things. Measure 109, and they could reveal it. I mean, from a legal perspective, the legislature could just pass a new law saying we repeal the measure that just passed. But the legislature is generally friendly, they generally adhere to the will of the people. And so, you know, there's some of that going on, but there's not a lot of it going on. Luckily for Measure 109, the legislature does not seem to be taking any steps. I think this is such a limited measure in a way that so far what I'm hearing that 2021 Oregon legislature, it's not like people are lining up with bills to amend Measure 109.
Plus in measure 109 we have a two-year development period. We gave the Oregon Health Authority, the regulatory agency, an extra year to make rules. So, I think part of that strategy was political. But part of it was there such a learning curve for everybody here that it made sense to kind of go a little slower at a better pace. Back in cannabis they had one year to make the rules. And it was just, it was kind of chaos for a year. And that was cannabis and we had already had medical cannabis for a dozen years. So, back to the length of the measure. So, we tried to get in as much as we as we wanted and there are places where we, you know, sprinkled little ideas for people. So, the Oregon Health Authority and the Psilocybin Advisory Board can consider those ideas.
JB: Speaking of cannabis legislation, those efforts that you were part of, was it a similar process? Or was it, were there differences with the Measure 109 in comparison to the experience that you had with Measure 91.
DK: I mean, it was a similar process. I had never drafted legislation before. But when I looked at back in 2012 or 20, early 2013, right after Oregon's 2012 cannabis measure failed, I looked at Colorado's measure. I looked at Washington's measure. I personally didn't like either of them very much. I'm also a business lawyer. So, I come at it from an angle where not only am I try to put guardrails around the measure itself so that it's politically viable, but I'm also trying to make sure that the industry that comes out on the other end is viable itself.
If you create a system where nobody can possibly survive, you're not going to have anything. And so it's so I'm kind of thinking about, you know, how companies are going to be formed. How much money this is going to take. What the price points are. And so you know, what the tax should be? What's the cost of implementing the whole program? So, all of these things are factors. And I didn't, I thought Washington's measure for cannabis was way over the top, like horrible for business. But I understood why they did it because they were the first to go and they had to get buy in and it was more of a concept and the folks who promoted it were thinking that, you know, 鈥淟et's just get past all this other stuff will work out later on.鈥 And so I have no criticisms of that, but once it passed, and once, Oregonians, you know, we border Washington, we like to think we're both progressive, maybe there's some competition there. Once that Washington passed, we thought we felt left out. So, that was where we sort of said, okay, you know, I think in two years, there was some talk about waiting until 2016 for cannabis, but we thought 2014, it would go. And by the way, the 2012 measure which I thought again, you know, that was what it was, I didn't think it was politically viable. And they had no money for a campaign like no national funders joined that at all. This guy was like, on his own, the author of it. No money, and it still got 47% of the vote. And then Washington passed. So, it was, it didn't take a rocket scientist to figure out like, 鈥淥kay, if we can, if we have an extra two years to do this, and we have a better measure, and we can bring in some money, like it should, it should pass.鈥
Psilocybin, I don't think it's going to be the volume of consumption is not going to rival cannabis. It seems every quarter in Oregon we get new reports and the tax revenues and the consumption just increases every single quarter. I don't think psilocybin is going to bring in that kind of tax revenue, or reach that kind of volume of consumption, but it'll have its space. And because Oregon is the first one to go, I think there might be, you know, eventually, some folks who travel here to partake in what is a state legal system. And I suspect, even if, after the two-year development period, when the first licenses here start rolling out in 2023, it's possible some other state could leapfrog us, I kind of doubt it. And I'm going to guess that we're going to be the first one to go. So, that'll be a great opportunity for frankly, everybody to come participate if they want it.
JB: That鈥檚 really interesting talking about creating legislation that is politically viable, while fostering that space for the industry to come out and thrive and grow as well. How do you walk that line? Do you have an example of like a specific way that you strike that balance? Because it seems that to be an extremely thin line to walk, I would imagine.
DK: Oh, it is and you have to look into your crystal ball. And you have to, there's a lot of guesswork. And keep in mind when you're writing a measure, like there's a whole process to go through the Elections Commission and the attorney general to get it approved. You got to go get signatures, and then you have to have a campaign. And so you're drafting this, a good year and a half before election day, if not more. And the other thing about it, when you sponsor a piece of legislation, it goes before committees. It changes all the time. I mean, people are negotiating and lobbying and it changes. When you have a ballot measure you have a product that once it's out there, you cannot change. I mean, just like when Tom Eckert was horrified that we propose to start over again, you live with what you put out there. So, you really have to think about it. Because if you start, if you don't anticipate all the questions, and people start firing bullets at you, and you're, 鈥淲ell, we didn't think about that,鈥 or 鈥淥h.鈥 You know, you have to anticipate opposition. So, an example for Measure 109 of a decision point, which was very important, was is it entirely medical? If I want to partake in it? Do I have to have a medical condition? Or can I just do it for any reason? Now you could say that's recreational, I'm not gonna run out to the desert and have a party. But you could say 鈥淚 don't have to necessarily have a reason to do it, I just want to do it for my mental well-being just check it out.鈥 Or, 鈥淵ou know, I may have serious depression problems or addiction problems, or any type of end of life situations where there's a real medical reason.鈥
聽So, the question before us was: do we create medical preconditions? What would that mean? That would mean, somebody has to talk to a doctor, or a doctor is going to play ball with this stuff. At this stage? What if anybody can do it? Are people going to, how are people going to react to that? And we thought, after, you know, batting that around, we thought that the safeguards that are in place: client questionnaires, trusting the Oregon Health Authority to come up with a system to make sure that people who should not be partaking are not partaking. But not having medical preconditions. It's politically, it was politically riskier to do that. Right? It would have been safer to say, 鈥淵ou need to get all these folks to sign off on that you can do this.鈥 But we thought it would have decreased access. It would have made it prohibitively expensive. And we decided not to do that. So, that was an educated guess we took, which was one of the most important ones we took that we should go with this as an example. We would like to do it this way. Is it politically viable? That was a close call and we decided to go with it and obviously it didn't hurt us.
The other biggest example for Measure 109 was the facilitators. Do they need to be medical personnel or trained therapists? Or is this a kind of a little bit of a different thing, where if somebody gets the proper education, they can have that skill set without having a medical degree? We erred on the side of not having a medical degree there either. So, that was a little, arguably, it would have been safer for us not to do that. So, those are the two like major decisions just within the framework of having a therapeutic system in the first place.
JB: And then lastly, for law students who are interested in business, but are also interested in being a part of really an exciting frontier in the law, like we had said, what advice would you have for students who may be interested in being a part of efforts that you currently are in?
DK: Like I mentioned before on cannabis, where you initially had criminal lawyers advising the industry, but the industry when it became regulated needed, other lawyers. Criminal lawyers, were not suited to form businesses or raise capital or you know, employment, or tax or real estate or anything else. So, these will be businesses. There are definitely interesting aspects to it as a result of federal prohibition. But I would say that, you know, 80%, of what we do for cannabis clients is just what you do for any client. Where does that leave a long young lawyer? Can you just run out and market yourself as a cannabis attorney or as a psilocybin attorney?
You can definitely learn about the industry. There's sort of a trend for all law firms now to sort of focus on industries or to become intimately knowledgeable about an industry and the special needs that are required and heavily regulated industries are sort of good ones for lawyers, because there's a lot more work to do.
Now, one thing that young lawyers can do is to just know the rules, right? I mean, you don't need a special skill set. To be a business lawyer, it takes years to become a, I would say, an experienced business attorney. You have to, it's so broad, and there's so many different aspects to it, that it just takes a long time. You don't learn it in law school. But to understand the rules, new rules for cannabis that are constantly changing, you got 100 pages of rules on a brand-new industry. A good first-year lawyer could learn that stuff backward and forward. We hired a guy back in the early days of our firm to be that person, because if I'm doing business work, my colleagues are doing whatever they're doing. I'm too old. I don't want to learn anything new and I don't have the time to do it. So, we need someone. You know, read these rules. Read them backward and forward. Go to the meetings. Hear the testimony. And this person became like I would say one of the leading compliance attorneys in the state with no prior experience right out of, essentially out of law school.
So, there's that angle. Now, I don't know if that's a career because as the rules stabilize over time, that winds down, right? I mean, or it becomes more known, less ambiguous, and companies tend to sort of bring it in house at some level. But it's a great starting point. And just hanging around a new industry. I mean, when a new industry is created, it's a great starting point.
Now, in the early days of cannabis, like I said, there was a lot of law firms that weren't willing to jump in, because of ethical concerns of federal concerns of reputational concerns. And so a lot of law firms sat back and waited. But at least in Oregon now, I would say nearly every law firm is willing to represent somebody in the cannabis industry, even if it's only investors, or a landlord or somebody like that, an ancillary business. Nobody says, 鈥淥h, my God, cannabis. We don't want anything to do with that.鈥 Psilocybin, I think, is not going to have the honeymoon period that where nobody is going to jump in. Everybody has already jumped into a controlled substance. It's state legal. It's federally illegal. All those worries have gone away. And I don't think at this stage of the game psilocybin is going to hurt anyone's reputation. If you're already providing legal services to the cannabis industry it's not a big step to say let's do the same thing for psilocybin. And so that's a way of saying like, all lawyers are going to be in it. So, I think for young lawyers, and it's going to be a smaller industry, but I think a starting place is to just look at the rules. Maybe just hang around the industry and follow what's going on. So, you speak the language, you meet people and that could be useful because some firms will jump in before other than some firms will have clients before others. But other otherwise I would say you have to just stick with the, it's not a panacea of a career. You just have to do what you would ordinarily do and learn to become some type of lawyer and not only a psilocybin compliance layer, although it's a good starting place.
JB: Dave Kopilak is founder and shareholder at Emerge Law Group. Among his many accomplishments, working on some of the most innovative pieces of legislation in the state, he is the primary drafter of Measure 109, which creates a legal market for psilocybin-assisted therapy in the state. You can learn more about his work in our show notes on the podcast page at law.uw.edu. Be sure to check there for more on what we spoke about today.
Dave, thank you so much. This was great.
DK: Thanks, John. Glad to be here again. Appreciate it.
