The State Bar of South Dakota ethics committee said in the latest issue of the Bar newsletter that attorneys in the state may not provide legal services to cannabis industry clients, KELO reports. The guidance comes after voters approved both medical and adult-use cannabis legalization in the state in November.
The opinion cites the South Dakota Bar Rules of Professional Conduct which directs lawyers not to “counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent. However, the rules do allow attorneys to “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.”
“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,” the guidance states.
“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.” – South Dakota Bar via KELO
Similar warnings have been levied in other states that have enacted cannabis reform laws but, in the majority of those cases, subsequent guidance has been issued to clarify that lawyers can work with industry clients.
In 2019, the American Bar Association issued a resolution calling for the federal government to allow state-approved cannabis programs to operate without interference.
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