State Bar of S.D. panel holds to pot opinion

Capitol News Bureau
KELO Pierre Capital Generic

PIERRE, S.D. (KELO) — The ethics committee for the State Bar of South Dakota isn’t backing down from its opinion that a lawyer may not ethically provide legal services to assist a client in establishing, licensing, or otherwise operating a marijuana business in South Dakota while it remains a federal crime.

The panel issued a second opinion Wednesday reinforcing its original position: Rule 1.2(d) of the South Dakota Rules of Professional Conduct “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.”

Marijuana possession and related activities are illegal under federal law. South Dakota voters on November 3 approved Initiated Measure 26 allowing medical use of marijuana and South Dakota Constitutional Amendment A legalizing and taxing recreational marijuana.

The opinion Wednesday was prompted by a lawyer who contacted the State Bar of South Dakota after the first opinion was published Monday.

The lawyer noted that Section 9 of Constitutional Amendment A “provides, in part, that 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 lawyer questioned why Section 9 was not addressed in the ethics committee’s 2020-07 opinion.

The committee said the lawyer believes that unless Constitutional Amendment A is invalidated, Section 9 would preclude disciplinary action against any attorney who provides legal services to a marijuana business notwithstanding Rule 1.2(d).

Further, the lawyer also reportedly believes that 2020-07 should either be “corrected” or the committee should explain why Opinion 2020-07 should not be “corrected.”

The committee’s answer: “This question calls upon the Committee to interpret and then apply substantive law which is outside of the Committee’s purview.”

The committee instead stuck to the main point of its original opinion: “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 committee Wednesday wrote: “Lawyer’s inquiry highlights an important but oft-overlooked limitation on the Committee’s purview. Since at least as early as Ethics Opinion 96-7, the Committee has stated ‘this committee cannot answer questions of substantive law.’

“This is because the Committee’s opinions are not judicial or disciplinary opinions. They do not have the force of law. They are purely advisory opinions or guidance from a bar committee with a limited purpose, i.e., ethically guiding and providing a potential ‘good faith’ defense against discipline for inquiring attorneys who accurately state the facts of their ethical dilemma and then follow the recommendations of the Committee.

“The Committee arrives at those recommendations by examining the facts as presented under the South Dakota Rules of Professional Conduct as written. A body with jurisdiction to issue legally-binding ethics determinations, such as a court or disciplinary board, obviously could reach a different conclusion later. That decision would have the actual force of law.

“So the Committee’s opinion that a particular course of conduct is ethical under the Rules (or not) does not make it ethical (or not). For example, attorneys may disagree with the Committee’s Opinion 2020-07 and elect to proceed otherwise. They will not necessarily be acting unethically. They will only be proceeding at their own risk that the Committee’s guidance is correct.

“Likewise, had the Committee opined the inquired-upon conduct was ethical; this would not have made that conduct ethical. It would have only provided a potential defense to discipline for those attorneys who acted in good-faith reliance upon it, at least until an adjudicative body with jurisdiction rendered an opinion informing and binding lawyers in their future conduct.”

That’s why the committee didn’t take Section 9 in the original opinion.

“It also explains why, as briefly noted above, the Committee still cannot issue an opinion regarding what Section 9 of Constitutional Amendment A portends for attorney discipline. In fact, a lawyer’s inquiry does not present an ethical question at all.

“Whether Section 9 of Constitutional Amendment A affords attorneys with some sort of immunity from discipline for assisting clients with setting up and licensing marijuana-distribution businesses does not concern the Rules of Professional Conduct. It is not within the Committee’s purview and does not change the Committee’s analysis. The conduct at issue is either ethical under the Rules or it is not.

“Whether the Rules should be changed to obtain a different result is a policy question this body cannot answer.”

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