The South Dakota State Bar is providing an additional ethical opinion on whether lawyers in the state can provide legal counsel to clients dealing in marijuana.
It says attorneys can proceed to give counsel but do so at their own risk.
The state bar originally said state lawyers may not ethically provide legal services to or represent marijuana dispensaries and cultivators.
They say that’s the case because marijuana is still illegal under federal law.
The state bar points to a provision in the South Dakota Rules of Professional Conduct that says a lawyer shall not counsel a client in conduct the lawyer knows is criminal or fraudulent.
That rule doesn’t distinguish between federal and state law.
Colorado was one of the first states to legalize recreational marijuana. A similar issue arose there in 2012, following the vote to legalize marijuana there.
Brian Vicente is a lawyer with Vicente Sederberg LLP, a cannabis law firm based in Denver, Colorado, that provides legal and policy services to marijuana and hemp companies. Vicente says everyone is entitled to a lawyer.
“There was some early statements by the Colorado Bar Association that said we’re not sure if lawyers should be able to advise on this state law and things of that nature. Those have been sorted out for a good ten years," Vicente says. "Now, we’re at a place with 40 states with medical marijuana and fifteen with recreational marijuana and every single one of those states allows attorneys to advise in the space of cannabis and medical cannabis.”
In its new ethics opinion, the South Dakota Bar says the committee’s opinions are not judicial or disciplinary opinions and don’t carry the force of law. They say the ethics opinions are purely advisory.
In November, South Dakota voters approved two marijuana-related ballot questions, which legalize recreational and medical marijuana—as well as industrial hemp. One of the ballot measures, Amendment A, places cannabis provisions in the state constitution.
Marijuana remains illegal at the federal level. But a section in Amendment A allows the holder of an occupational license to provide services related to marijuana.
Two law enforcement officials are challenging Amendment A in court. A motions hearing is set for January 27 in the Hughes County court.
-Contact SDPB reporter Lee Strubinger by email.
The Full Ethics Opinion 2021-01:
Issue Presented: Whether Section 9 of Constitutional Amendment A precludes a court or the
Disciplinary Board from taking disciplinary action against a lawyer who provides legal services
to a marijuana business notwithstanding Rule 1.2(d) of the Rules of Professional Conduct?
Answer: This question calls upon the Committee to interpret and then apply substantive law
which is outside of the Committee’s purview
FACTS AND APPLICABLE RULE
This Opinion issues immediately after (and likely because) Opinion 2020-7 was issued. To
provide background, in November 2020, two South Dakota state ballot measures, Initiated
Measure 26, legalizing marijuana for medical use by qualifying patients under certain conditions,
and Constitutional Amendment A, legalizing the cultivation, processing, possession, use, and
distribution of recreational marijuana subject to various restrictions, passed by a majority vote of
the electorate.
As noted in the issue statement, issues of substantive law are ordinarily outside the Committee’s
purview, but it appeared the inquiring Lawyer in Opinion 2020-07 (and substantially all of the
other members of the Bar) agreed manufacturing, distributing, or dispensing marijuana, or
possessing marijuana intending to do any of the foregoing, remain illegal under federal law.
The Lawyer inquired whether the South Dakota Rules of Professional Conduct permitted Lawyer
to advise a client about licensing and other legal issues related to establishing, licensing, or
otherwise operating a business to distribute or dispense marijuana.
Citing Rule 1.2 (d) of the South Dakota Rules of Professional conduct, the Committee opined:
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 day after Opinion 2020-07 was published, a different Lawyer contacted the State Bar of
South Dakota and noted that Section 9 of Constitutional Amendment A provides, in part:
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.
Ethics Opinion 2021-01
Lawyer questions why Section 9 of Constitutional Amendment A was not addressed in Opinion
2020-07. 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); and that Opinion 2020-07 should either be
“corrected,” or the Committee should explain why Opinion 2020-07 should not be “corrected.”
DISCUSSION
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.
These general principles explain why the Committee issued Opinion 2020-07, applying the Rules
of Professional Conduct, without discussing Section 9 of Constitutional Amendment A, a
substantive rule of law, (or for that matter, without discussing any other substantive legal issues
that might apply). 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, 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. Similarly, whether an attorney can be disciplined for proceeding in a manner
inconsistent with Opinion 2020-07 was not before the Committee when it issued that opinion;
and the Committee has no authority to answer that question now that it has been posed.
CONCLUSION
The Committee’s purview is limited and Opinion 2020-07 was similarly limited. In the
Committee’s opinion, Rule 1.2(d) is unambiguous: Attorneys may not ethically provide legal
services to assist a client in establishing, licensing, or otherwise operating a marijuana business.
Opinion 2020-07 does not have the force of law, so South Dakota attorneys can still proceed
however they wish, understanding they do so at their own risk of any consequences.
Whether a body with constitutional authority to change Rule 1.2(d) or having the power to
interpret it differently but with the force of law should do so is outside this Committee’s
purview, as is Lawyer’s question whether Section 9 of Constitutional Amendment A affords
attorneys immunity from discipline.
