{"id":841,"date":"2021-01-06T12:10:04","date_gmt":"2021-01-06T17:10:04","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=841"},"modified":"2021-01-06T12:10:04","modified_gmt":"2021-01-06T17:10:04","slug":"south-dakota-bar-warns-lawyers-that-counseling-marijuana-clients-might-be-ethics-violation-not-first-state-to-say-so","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2021\/01\/south-dakota-bar-warns-lawyers-that-counseling-marijuana-clients-might-be-ethics-violation-not-first-state-to-say-so\/","title":{"rendered":"South Dakota Bar Warns Lawyers that Counseling Marijuana Clients Might be Ethics Violation \u2013 Not First State to Say So"},"content":{"rendered":"<p style=\"text-align: justify\">In fall 2020, South Dakota voters approved measures to legalize both medical and recreational marijuana. See <a href=\"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2020\/11\/marijuana-reforms-win-big-at-the-polls\/\" target=\"_blank\">Marijuana Reforms Win Big at the Polls<\/a>.\u00a0In January 2021, however, the South Dakota State Bar Association warned attorneys that providing legal services to marijuana businesses would violate the South Dakota Rules of Professional Conduct (i.e., the bar\u2019s code of ethics). The short (1 page) ethics opinion can be found on page 32:\u00a0<a href=\"https:\/\/cdn.vanderbilt.edu\/t2-my\/my-prd\/wp-content\/uploads\/sites\/2523\/2021\/01\/South-Dakota-ethics-opinion-January-2021.pdf\">South Dakota ethics opinion January 2021<\/a><\/p>\n<p style=\"text-align: justify\">The ethics opinion rests on Rule 1.2(d), which every state bar (as far as I am aware) has adopted (it\u2019s part of the Model Rules of Professional Conduct). In full, Rule 1.2(d) stipulates that:<\/p>\n<p style=\"text-align: justify;padding-left: 30px\">\u201cA lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a 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.\u201d<\/p>\n<p style=\"text-align: justify\">The South Dakota bar reasons that because federal law continues to ban the production and distribution of marijuana, lawyers may not provide (most) legal services to marijuana clients. Here\u2019s the key paragraph from the ethics opinion, which largely tracks the language of Rule 1.2(d):<\/p>\n<p style=\"text-align: justify;padding-left: 30px\">&#8220;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.&#8221;<\/p>\n<p style=\"text-align: justify\">The book discusses Rule 1.2(d) and the special ethical and legal issues attorneys face when advising marijuana clients \u2013 indeed, one-half of Chapter 12 is devoted to those\u00a0subjects (see pages 626-644). I\u2019ve discussed some of these issues in previous posts as well:<\/p>\n<ul style=\"text-align: justify\">\n<li><a href=\"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2019\/11\/california-issues-draft-formal-ethics-opinion-for-attorneys-advising-marijuana-clients\/\">California Issues (Draft) Formal Ethics Opinion for Attorneys Advising Marijuana Clients<\/a><\/li>\n<li><a href=\"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2017\/09\/the-ongoing-criminal-case-against-a-san-diego-marijuana-law-attorney\/\">The Ongoing Criminal Case Against a San Diego Medical Marijuana Attorney<\/a><\/li>\n<li><a href=\"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2018\/07\/update-the-criminal-case-against-a-san-diego-marijuana-attorney-has-settled\/\">UPDATE: The Criminal Case Against a San Diego Marijuana Attorney has Settled<\/a><\/li>\n<\/ul>\n<p style=\"text-align: justify\">Here, let me make three observations about the South Dakota opinion, which has (perhaps needlessly) caused quite a stir in the legal world.<\/p>\n<h4 style=\"text-align: justify\">1. Several other states \u2013 including Colorado and Ohio &#8212; have reached the same conclusion about Rule 1.2(d).<\/h4>\n<p style=\"text-align: justify\">Many news reports make it seem as if South Dakota\u2019s bar association had just done something crazy or at least novel. But it\u2019s important to recognize that several other state bar associations \/ ethics committees have reached the same conclusion about Rule 1.2(d). As I discuss in the book, for example, Ohio\u2019s Board of Professional Conduct similarly concluded that providing many types of legal services (e.g., helping a client with a license application) under the Buckeye State\u2019s medical marijuana law would violate Rule 1.2(d) (see pages 627-29 for the Ohio opinion). I call this the \u201crestrictive\u201d interpretation of Rule 1.2(d).<\/p>\n<p style=\"text-align: justify\">To be sure, other states (like New York) have interpreted Rule 1.2(d) more flexibly to allow lawyers to provide the same services to marijuana clients that they might provide to, say, craft brewers or hair salons. (See book, pages 631-634.) These states have adopted what I call the \u201cpermissive\u201d interpretation of Rule 1.2(d). But I think the plain text of Rule 1.2(d), and the fact that several states have reached the same conclusion as the South Dakota bar, suggests that South Dakota\u2019s interpretation is not \u201cfrivolous\u201d, \u201cappalling\u201d, \u201cshocking,\u201d etc., as I\u2019ve heard some folks describe it.<\/p>\n<h4 style=\"text-align: justify\">2. . . . but every other state that\u2019s adopted the \u201crestrictive\u201d interpretation has subsequently revised Rule 1.2(d) to permit lawyers to advise marijuana clients.<\/h4>\n<p style=\"text-align: justify\">Obviously, those restrictive state ethics opinions have not stopped lawyers in Ohio, Colorado, etc. from providing a full range of legal services to marijuana clients. So what gives?<\/p>\n<p style=\"text-align: justify\">Importantly, every state that has interpreted Rule 1.2(d) to limit the services that lawyers may offer marijuana clients has subsequently amended their Rule 1.2(d) to expressly permit lawyers to provide those services. I discuss these amendments in the book on page 630 n.2. (Sometimes, rather than amend the text of the Rule, state bars just add a new comment to the Rule that accomplishes the same thing.)<\/p>\n<p style=\"text-align: justify\">So South Dakota would break with other states ONLY IF THE STATE DOES NOT AMEND RULE 1.2(d) TO ALLOW LAWYERS TO ADVISE MARIJUANA CLIENTS.<\/p>\n<p style=\"text-align: justify\">There are many reasons for the state to make such an amendment, i.e., to permit its lawyers to provide legal services to marijuana clients \u2013 e.g., lawyers can help ensure that\u00a0marijuana businesses comply\u00a0with state law. (That\u2019s why many states have adopted the permissive interpretation of Rule 1.2(d) in the first instance.) The South Dakota ethics opinion doesn\u2019t mention any amendment, but it\u2019s possible the state will revise its Rule 1.2(d), thus mooting many of the concerns that have been raised by the bar&#8217;s restrictive interpretation of the Rule.<\/p>\n<h4 style=\"text-align: justify\">3. South Dakota\u2019s brief opinion may have saved the state bar from making some embarrassing distinctions.<\/h4>\n<p style=\"text-align: justify\">South Dakota\u2019s ethics opinion is unusual in one respect \u2013 it\u2019s very brief (1 page). Other states have issued much longer opinions (10 pages or more) discussing Rule 1.2(d), and those opinions make some\u00a0indefensible distinctions about the types of services lawyers may or may not provide their clients. I highlight these odd distinctions in Problems 12.11-12.13 of the book (pages 629-630 n.1). For example, while Ohio\u2019s Board of Professional Conduct says that a lawyer may not help a client OBTAIN a marijuana license in the first instance (e.g., by filling out a license application), it also says that a lawyer may help the client KEEP that license (e.g., by representing the client in a licensing board hearing). I just can\u2019t fathom this distinction, and I&#8217;ve\u00a0yet to get a good response from\u00a0state ethics boards (usually the response I get is of the\u00a0&#8220;. . . but it goes to eleven&#8221; variety).<\/p>\n<p style=\"text-align: justify\">Rule 1.2(d) itself seems to allow lawyers to provide SOME services to marijuana\u00a0clients \u2013 i.e., maybe the problem is with the drafting of the Rule,\u00a0rather than the\u00a0interpretations of it. And by parroting the Rule in its short opinion, the South Dakota bar seems to suggest there are some services a lawyer may provide marijuana clients in South Dakota, without violating the Rule. But hopefully the bar will moot the issue and save itself the nettlesome task of identifying what those permissible services are by revising Rule 1.2(d) to expressly allow lawyers to provide a full range of legal services to South Dakota\u2019s new marijuana industry.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>In fall 2020, South Dakota voters approved measures to legalize both medical and recreational marijuana. See Marijuana Reforms Win Big at the Polls.\u00a0In January 2021, however, the South Dakota State Bar Association warned attorneys that providing legal services to marijuana businesses would violate the South Dakota Rules of Professional Conduct (i.e., the bar\u2019s code of&#8230;<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[99,513,6,395,100,15,5,665,664,652],"class_list":["post-841","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-attorney","tag-bar","tag-cannabis","tag-ethics","tag-lawyer","tag-marihuana","tag-marijuana","tag-model-rule","tag-rule-1-2d","tag-south-dakota"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/841","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=841"}],"version-history":[{"count":2,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/841\/revisions"}],"predecessor-version":[{"id":844,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/841\/revisions\/844"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=841"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=841"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=841"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}