SIOUX FALLS, S.D. — Could attorneys in South Dakota be disbarred for helping set up a legal marijuana dispensary? An ethics committee for the state's bar association now says, "maybe."
According to guidance sent to attorneys Wednesday night, Jan. 6, the committee advising appropriate professional conduct for the State Bar of South Dakota says, "This question [whether attorneys may advise clients establishing a marijuana business] calls upon the committee to interpret and then apply substantive law, which is outside of the committee's purview."
Notably, the guidance backed off an opinion issued only days earlier that said attorney conduct rules do not "distinguish between client conduct that is illegal under South Dakota law and client conduct that is illegal only under federal law."
The successive guidances leave a legal cloud hanging for attorneys two months after the state's voters overwhelmingly voted to become one of just over a dozen states to fully legalize marijuana.
The crux, say legal experts who spoke with Forum News Service, is while growing, selling, or ingesting marijuana will be legal under South Dakota's constitution, federal law still lists marijuana as an illegal substance.
In an interview on Thursday, Jan. 7, Rapid City attorney and bar association president Terry Westergaard cautioned that the ethics committee — a 16-person group of volunteers across public and private practice as well as academia — only serves an advisory function, informing attorneys of its best guess on how to faithfully meet the bar association's rules of professional conduct.
"The Supreme Court has ultimate authority over discipline of lawyers," said Westergaard, who noted the initial opinion published in a January newsletter drew "several emails with very divergent views" from attorneys and forced something of a do-over with the latest opinion. "Their job [the ethics committee] is limited in scope."
Westergaard also noted the South Dakota Legislature has yet to establish the "rules and regulations" to administer recreational and medical marijuana, and a legal challenge to the amendment is underway.
In December, the Pennington County sheriff and state Highway Patrol superintendent asked a Hughes County judge for an injunction voiding Amendment A, which was approved by 54% of voters statewide.
Threatening disbarment or other less severe professional penalties against attorneys who legally advise clients regarding marijuana businesses that are legal under state law would not put South Dakota in a unique position. Bar associations in states that have legalized marijuana, such as Colorado and Washington, have also grappled with debates over whether they can provide legal advice to activity that is prohibited under federal law.
Critics of the bar association's initial guidance noted a section of South Dakota's pot amendment even banned attorneys from getting disciplined for advising clients.
But that stipulation creates a legal — not an ethical — question, says the committee's most recent opinion. In other words, go forward at your own risk. "This is probably not the last we've heard of it," said Westergaard.
Advocates for legalizing marijuana say cannabis can generate big business. A study in Oregon suggests the state gained $70 million in marijuana-related revenue during the first year of the recreational program.
Speaking Thursday morning at a Greater Sioux Falls Chamber of Commerce event, Rep.-elect Greg Jamison, a Sioux Falls Republican, acknowledged that "the marijuana legalization is going to bring a whole new industry" to South Dakota communities.
"What used to be under the table, illicit and illegal, for sure, is now becoming legal," Jamison said. "And there's going to be business opportunities all over the state, whether you're growing it, selling it, testing it, or regulating it."
The state's legalization of medicinal and recreational marijuana is slated to take effect July 1.