A committee that advises members of the State Bar of South Dakota has issued an opinion that advises attorneys to not signify purchasers who plan to supply or promote hashish within the state. The opinion, which was printed within the January 2021 version of the group’s newsletter, follows the approval of two state marijuana legalization measures within the November normal election.

Voters overwhelmingly approved South Dakota Measure 26, a poll initiative to legalize the medicinal use of marijuana, with almost 70% of votes solid. One other measure to legalize hashish to be used by adults, South Dakota Modification A, additionally prevailed on the poll field with greater than 54% of the vote. Beneath Modification A, adults 21 and older are permitted to own and distribute as much as one ounce of marijuana.

In line with the State Bar e-newsletter, the passage of the poll measure has prompted inquiries into the moral issues of representing purchasers “about licensing and different authorized points associated to establishing, licensing, or in any other case working a enterprise to distribute or dispense marijuana.”

To reply the query, the committee cited the South Dakota Guidelines of Skilled Conduct, noting that Rule 1.2(d) states {that a} “lawyer shall not counsel a shopper to interact, or help a shopper, in conduct the lawyer is aware of is legal or fraudulent, however lawyer could focus on the authorized penalties of any proposed course of conduct with a shopper and should counsel or help a shopper to make an excellent religion effort to find out the validity, scope, which means or software of the legislation.”

Hashish Nonetheless Unlawful Beneath Federal Regulation

The committee famous that whereas the 2 poll measures handed by voters legalize marijuana under South Dakota state law, “manufacturing, distributing, or meting out marijuana, or possessing marijuana aspiring to do any of the foregoing, stay unlawful below federal legislation.”

The opinion discovered that the rule “doesn’t distinguish between shopper conduct that’s unlawful below South Dakota legislation and shopper conduct that’s unlawful solely below federal legislation. It applies to any unlawful shopper conduct.” 

Consequently, attorneys “could not ethically present authorized companies to help a shopper in establishing, licensing, or in any other case working a marijuana enterprise,” the opinion continues. 

Though the opinion advises attorneys to not signify hashish companies, it does observe that attorneys could advise a shopper who’s contemplating taking such a plan of action and the authorized ramifications of doing so.

“Lawyer could solely advise a shopper contemplating this plan of action concerning the potential authorized penalties of doing so, below both state or federal legislation, or help the shopper in making an excellent religion effort to find out the validity, scope, which means, or software of the related state and federal legislation,” the committee’s opinion states.

In 2017, the American Bar Affiliation printed a memo advising attorneys that representing marijuana companies “presents an issue for attorneys as they advise their purchasers within the sale and use of marijuana.” The memo additionally famous that as of the time of its publication, the lawyer disciplinary workplaces in 16 states which have legalized hashish had revised the principles for representing cannabis-related purchasers.