NOTE: This story has been updated with additional information. It also has been corrected to attribute the opinion to the State Bar ethics committee. rather than the South Dakota Supreme Court. Reporter Bob Mercer apologizes for the error.
PIERRE, S.D. (KELO) — The State Bar of South Dakota ethics committee says a South Dakota lawyer may not ethically provide legal services to a client engaged in marijuana activities when sale of marijuana is legal in South Dakota but prohibited by federal law.
This story originally said the opinion came from the South Dakota Supreme Court. That was incorrect.
The ethics opinion was published Monday in the latest issue of the State Bar of South Dakota newsletter.
The opinion cites rule 1.2(d) of the South Dakota Rules of Professional Conduct that states:
“[a] lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”
The opinion concludes: “Rule 1.2(d) does not distinguish between client conduct that is illegal under South Dakota law and client conduct that is illegal only under federal law. It applies to any illegal client conduct.
“Consequently, Lawyer may not ethically provide legal services to assist a client in establishing,
licensing, or otherwise operating a marijuana business. Lawyer may only advise a client
considering this course of action about the potential legal consequences of doing so, under either
state or federal law, or assist the client in making a good faith effort to determine the validity,
scope, meaning, or application of the relevant state and federal law.”
The opinion adds a further twist to the legal fight already underway in state circuit court over the validity of Amendment A that South Dakota voters approved in the November 3 statewide election. The constitutional amendment would legalize recreational marijuana in South Dakota for persons age 21 and older and would impose a 15% excise tax on sales.
The ethics committee web page notes, “Action taken in reliance on a formal ethics opinion of the Committee is protected against discipline.”
The State Bar has a disciplinary board. From its website: “Discipline may range from a private reprimand by the board, public censure, suspension from practice for a specified time, placement on probation, to disbarment by the Supreme Court.”
Section 9 of Amendment A however states, “A holder of a professional or occupational license is not subject to professional discipline for providing advice or services related to marijuana licensees or applications on the basis that marijuana is prohibited by federal law.”
The American Bar Association explored the state v. federal issue on marijuana laws in a July 2, 2019, article.
