San Diego DA’s Prosecution of Pot Attorney Sends Chills Through the Legal Community

It has been reported throughout the years that minor drug offenders or registered marijuana businesses were being targeted by police, but now, it seems that marijuana attorneys who represent those in the marijuana businesses are now coming under fire from law enforcement.  Last month, attorney Jessica McElfresh, an experienced attorney in cannabis law, had her hearing in San Diego district court. She is facing multiple felony charges for allegedly hiding hash oil from city inspectors on behalf of her client, James Slatic.

Back in May, D.A. Bonnie Dumanis filed a slew of criminal charges, alleging that Slatic and his business partners were illegally manufacturing and selling hash oil across the country.  Specifically, McElfresh is accused of hiding the evidence from city inspectors during an April 2015 inspection of her client’s facilities in Kearny Mesa.

However, what most attorneys are concerned about is arguably the most sacred right in the legal profession – attorney-client privilege. Prosecutors want access to all of her records, not just the ones pertaining to the charges McElfresh is fighting. There is a particular email in question that prosecutors are using to accuses McElfresh of conspiring with her client. However, McElfresh has counseled hundreds of clients, and now those records are in front of prosecutors.

The Ethics of Marijuana Law

It has long been debated whether an attorney can take on a client in the medical cannabis business. While recreational marijuana will soon be legalized in California, it is still a Schedule I drug under the federal Substances Control Act punishable by jail time. A June 2015 ethics opinion from the Bar Association of San Francisco (Opinion 2015-1) has concluded that representation of such businesses is legal if the lawyer advises clients to adhere to state regs and discourages illegal conduct. For example, aiding a client through a business permitting process is lawful representation that does not breach ethics rules.

Attorney Client Privilege

Every state bar has a rule that protects attorney-client privilege. In California, ABA Rule 3-100 specifies that conversations and information given by a client as it pertains to professional legal advice are protected as “confidential” and inadmissible in court. However, that same rule also specifies that a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime. In the scenario above, the judge claims that McElfresh’s communication(s) fall under this narrow exception.

San Diego Marijuana and Criminal Defense Lawyer

Criminal defense attorney David M. Boertje has extensive experience fighting both low-level and high-level drug possession charges, and now we are adding the defense of legitimate marijuana businesses and marijuana attorneys to our portfolio. If you have been charged in the past or arrested for the possession of marijuana, an ABA ethical violation, or any other drug-related offense, do not hesitate to contact The Law Offices of David M. Boertje today.  Initial consultations are free and confidential.