State Bar of South Dakota advises lawyers ‘may not ethically’ represent marijuana businesses

Marijuana plant (file photo)
Marijuana plant (file photo)(WTOK)
Published: Jan. 5, 2021 at 10:48 AM CST
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PIERRE, S.D. (Dakota News Now) - A committee that oversees ethical norms among South Dakota attorneys is advising against providing legal services to businesses seeking to produce or sell marijuana in the state.

The State Bar of South Dakota ethic committee issued the opinion in its latest monthly newsletter in response to two ballot measures recently passed by South Dakota voters that made marijuana legal in the state.

The opinion concluded that while the measures may have made marijuana legal in South Dakota, it is still illegal at a federal level. Rule 1.2(d) of South Dakota Rules of Professional Conduct states that a lawyer “shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent.” The opinion notes that the rule does not differentiate between state and federal laws.

While the opinion says South Dakota lawyers should not represent marijuana businesses, it does say attorneys may “advise” a client in considering this course of action and the potential legal consequences of doing so.

The state bar’s website states lawyers who fail to abide by the Rules of Professional Conduct “may be disciplined and given penalties ranging from a private reprimand to permanent loss of the privilege to practice law.”

A memo published by the American Bar Association in 2017 advising lawyers on representing marijuana businesses “presents a problem for lawyers as they advise their clients in the sale and use of marijuana.” It notes as of July, 2017, 16 state lawyer disciplinary offices have modified rules for representing marijuana-related clients. A majority of states that had not modified guidance for rule 1.2(d) continued regulations under the belief that “the rule bars assistance with conduct that violates the Controlled Substance Act.”

Legal marijuana in South Dakota has faced several challenges since voters in November approved Amendment A, which legalized recreational marijuana, and Initiated Measure 26, which legalized medical marijuana. Two state law enforcement officials have filed a lawsuit claiming Amendment A is unconstitutional. Gov. Kristi Noem has spoken out against both measures, saying they’re “the wrong choice” for South Dakota.

The South Dakota State Bar ethics committee's full opinion regarding representing marijuana...
The South Dakota State Bar ethics committee's full opinion regarding representing marijuana businesses published in its January, 2021 newsletter.(South Dakota State Bar)

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