In a case that drew massive attention from industry insiders and legal scholars, the San Diego District Attorney’s office has dropped felony charges against cannabis business attorney Jessica McElfresh.
Not only did the case have implications for attorneys in the cannabis industry, it also brought up much larger questions about attorney-client privilege, which grants an attorney permission to withhold information about their clients from authorities. Being able to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney is critical for making sure that clients can be completely honest with their attorneys, thereby allowing the attorney to give the best possible legal advice to their client.
McElfresh’s case started when communications between herself and client James Slatic were swept up in a January 2016 raid of a San Diego-based cannabis oil manufacturer, Med-West Distribution. The state asserted that Med-West was planning to distribute cannabis oil around the country.
When the court went back and reviewed the materials on Slatic’s electronic devices, they found communications between him and McElfresh. When McElfresh attempted to seal the information in those communications, citing the policy of attorney-client privilege, the judge ordered the data reviewed for anything incriminating.
The court then uncovered one incriminating email.
“They’ve been there once and went away, operating under the theory that no actual marijuana is there,” McElfresh wrote in the email to Slatic that was uncovered by the court. “We did a really, really good job giving them plausible deniability – and it was clear to them it wasn’t a dispensary. But, I think they suspected it was something else more than paper.”
Deputy District Attorney Jorge Del Portillo said in the court documents that the email was McElfresh admitting to an orchestrated charade for city inspectors. But according to Slatic, the state was taking her email out of context. He said it was about zoning inspectors mistaking the facility for a dispensary.
Judge Charles Rodgers disagreed, saying the email was fair game for the prosecution. And they took it, filing charges and carrying out search warrants on McElfresh’s home and office on the same day. They even searched some of McElfresh’s files pertaining to other clients.
Since all this happened a year ago, Slatic has struck a deal to knock his 15 felony charges down to two misdemeanors and he also received back hundreds of thousands of dollars that the state seized from Med-West through asset forfeiture during the raid.
McElfresh is also striking a plea deal. Instead of facing a felony charge, McElfresh will plead guilty to two infractions of San Diego’s municipal code in 12 months. Over that year of time, she can’t get in trouble with the law, as written in the deferred prosecution agreement all parties signed this week. McElfresh will also pay a $250 fine, participate in a state bar ethics program with a responsibility test at the end and complete 80 hours of community service.
But as San Diego County Bar Ethics Committee member Michael Crowley told the Voice of San Diego at the start of McElfresh’s trial, it strikes a dangerous precedent for the San Diego district attorney’s office to have gone after a lawyer over an email of legal advice they sent — cannabis lawyer or not.
“It’s one thing to pass legislation, it’s another to implement it. That’s where attorneys come in,” Crowley said. “They need to give opinions on what the law says without fear of being prospected by a DA who thinks they know the law. An attorney needs to feel that they can freely give advice on areas that are murky in the law. Because everybody’s just trying to figure it out.”
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