Criminal prosecution of California cannabis attorney raises concerns
The prosecution of a San Diego attorney is raising major concerns in the legal community about the attorney-client privilege and the possibility that Jessica McElfresh is being prosecuted because she did her job.
McElfresh, who has represented other clients who are involved with cannabis, is facing multiple felony charges related to one of her clients, Med-West Distribution, which sold marijuana laced products for medical uses. She faces up to 15 years in prison.
Former San Diego district attorney Bonnie Dumanis brought criminal charges against Med-West Distribution owner James Slatic, several of his business associates, and McElfresh in May 2017. The arrests happened after authorities raided Med-West in January 2016, seizing hundreds of thousands of dollars as well as records, inventory and equipment.
The criminal complaint said the defendants illegally manufactured and sought to sell “concentrated cannabis” using flammable and toxic chemicals while also engaging in money laundering and obstruction of justice.
Dumanis has since resigned but the case is still being prosecuted under her successor, Summer Stephan.
Two weeks before the business was raided, a judge ordered Dumanis to return over $100,000 that had been seized from Slatic and his family under civil forfeiture.
Dumanis claimed in the criminal complaint that McElfresh was involved in illegal activity. This allegedly involved McElfresh coming to a production facility and making sure that evidence of the manufacturing and possession of concentrated cannabis was removed before the facility was inspected.
According to KPBS, “The basis of the charges was an email McElfresh wrote to Slatic following the 2015 inspection. The email, a privileged attorney-client communication, was part of the trove of information and property seized during the DA-led raid of the Med-West facilities in January 2016, which drew widespread publicity and criticism.”
Slatic has said prosecutors didn’t understand the email, and that it was a bigger conversation about making sure that city inspectors understood that the facility wasn’t a marijuana dispensary.
Prosecutors seized McElfresh’s email, despite the fact that she has provided legal advice to hundreds of clients. Those clients have now hired other lawyers to keep their communication with McElfresh confidential.
“We have several clients who may also be in the files that were seized by the DA,” said Gina Austin, an attorney representing Citizens for Patient Rights, a political action committee that KPBS said advocates for local medical cannabis regulations. “We are protecting our rights.”
Austin expressed concern that behavior like this could lead clients to stop trusting and confiding in their attorneys, which would make it harder for lawyers to do their jobs effectively.
Prosecutors argued they should be able to look through all of McElfresh’s emails, but an agreement has been reached that would keep the clients confidential.
Under that agreement, prosecutors will only look at emails that mention the name and entities in the arrest warrant. However, the judge in the case said prosecutors could come back and seek to expand the search later if they had a good reason to do so.
The judge has also appointed a special master to decide which items are privileged and what could be turned over to prosecutors.
McElfresh’s lawyer said she should not have been charged.
“The only thing [McElfresh] did wrong was to advise a client in a field of law where the rules are rapidly changing, and what is legal and is not legal is not entirely clear on any particular point,” McElfresh’s defense attorney, Eugene Iredale, said.
Michael Crowley, a criminal defense lawyer and member of the San Diego County Bar’s Ethics Committee said he was concerned about the lack of clarity when it comes to cannabis law and how prosecuting someone like McElfresh will make attorneys afraid to give advice.
“An attorney needs to feel that they can freely give advice on areas that are murky in the law.” Crowley said.
Iredale also argues that prosecutors are unhappy marijuana has been legalized in California, and are taking out that anger on people like his client.
“Unfortunately, for whatever reason, the district attorney in San Diego County has historically fought a rearguard action against the changing norms and laws as represented by the democratic enactment of propositions regarding medicinal, and now recreational use of marijuana,” Iredale said.
The San Diego Board of Supervisors voted earlier this year to prohibit new marijuana businesses and phase out old ones in unincorporated parts of the county.
Full legalization of marijuana in California is scheduled to occur in January 2018.