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South Dakota legal professionals could not serve S.D. pot companies whereas sale stays a federal crime

PIERRE, SD (KELO) – The South Dakota Supreme Court says a South Dakota attorney may not provide ethical services to a client engaged in marijuana activities if the sale of marijuana is legal in South Dakota, but under federal law forbidden is.

The ethics statement was posted in the latest edition of the State Bar of South Dakota newsletter on Monday.

The statement cites Rule 1.2 (d) of the South Dakota Rules of Professional Conduct, which states: “[a] The attorney must not advise a client to involve or assist a client in conduct that the attorney knows is criminal or
fraudulent, but the attorney can discuss the legal ramifications of any suggested behavior
with a customer and can advise or assist a customer in good faith efforts to meet the
Validity, scope, importance or application of the law. “

The court concludes: “Rule 1.2 (d) does not distinguish between customer conduct that is illegal under South Dakota law and customer conduct that is only illegal under federal law. This applies to illegal customer behavior.

“As a result, the lawyer cannot provide ethical services to assist a client in incorporation.
Licensing or otherwise operating a marijuana business. The lawyer can only advise one client
taking into account this procedure with regard to the possible legal consequences that result from it
State or federal law or support of the customer in determining the validity in good faith,
Scope, significance or application of the relevant state and federal law. “

The statement adds another twist to the ongoing legal battle over the validity of Amendment A, which South Dakota voters approved in the November 3rd statewide election. The constitutional amendment would legalize recreational marijuana in South Dakota for anyone age 21 and older and impose a 15% excise tax on sales.

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