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Lawyers in San Diego and beyond worry the prosecution of a lawyer who represents a marijuana business could force a central tenet of practicing law – attorney-client privilege – to go up in smoke.
On July 7, dozens of attorneys filled the seats of a small San Diego courtroom. The attorneys were attending a hearing for one of their own, Jessica McElfresh, a San Diego lawyer experienced in cannabis law.
McElfresh is facing multiple felony charges.
What drew most attorneys to court that day was something they consider sacred: the attorney-client privilege of McElfresh and her past clients was at risk. Prosecutors wanted to look through all of her records, not just the ones pertaining to the charges she was fighting. Prosecutors and the defense have agreed on a method that would protect the confidentiality of McElfresh and her clients, though Judge Laura Halgren has only dubbed the agreement a “starting point.” A lot of lawyers remain concerned about the direction of the case.
The prosecution comes at a time of increased uncertainty over how law enforcement will treat the marijuana industry in San Diego – and it’s being taken by some as a sign that it will not be permissive.
In late May, then-District Attorney Bonnie Dumanis filed a slew of criminal charges, alleging that James Slatic, a medical-marijuana entrepreneur, and his business partners sought to illegally manufacture and sell hash oil across the country. The defendants were also charged with money laundering and obstruction of justice.
The DA alleged that Slatic’s lawyer, McElfresh, was in on the scheme, saying that she hid evidence of the hash oil from city inspectors during an April 2015 inspection of Slatic’s Med-West facilities in Kearny Mesa.
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.
“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. “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.”
“In that email, [McElfresh] essentially admitted she orchestrated a charade for city inspectors,” Deputy District Attorney Jorge Del Portillo wrote in court papers.
Slatic said the damning email was taken out of context. They were having a bigger, harmless conversation about a zoning inspection and making sure his facility was not mistaken for a dispensary.
Citing a rule that says a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime, Judge Charles Rogers ruled that the email was not protected by attorney-client privilege and could be used by the DA as evidence to file criminal charges. The ruling was the first of many red flags for other attorneys.
On the same day the charges were filed, investigators carried out a warrant and searched McElfresh’s home and office. Investigators took files, her desktop computer, laptop and cell phone.
During her years of practice, McElfresh has counseled hundreds of people about medical cannabis law. She did much of that work through email. After the search in May, the mostly email conversations with her clients, which are traditionally protected by attorney-client privilege, lay outside of her reach and up for debate in court.
Del Portillo argued for the “crime-fraud exception,” asserting that since McElfresh allegedly conspired to commit a crime with her Med-West clients, she loses her attorney-client privilege. “Notions of fundamental fairness demand that the privilege give way to justice,” Del Portillo wrote in court papers.
At the July 7 hearing, lawyers representing McElfresh’s former clients — medical marijuana businesses, nonprofits and political action committees — appeared in court to assert their attorney client-privilege.
Mara Felsen was one of those lawyers.
“When it became apparent that they were trying to evade the attorney-client privilege, there was a concerted effort to get all hands on deck and assert the attorney-client privilege, with respect to the clients,” Felsen said.
“We have several clients who may also be in the files that were seized by the DA,” said Gina Austin, an attorney representing one of McElfresh’s former clients. “We are protecting our rights.”
Austin said that endangering attorney-client privilege could spell a soured relationship and broken trust between attorneys and clients.
“If the courts start to breach those confidential provisions, then the clients are not going to disclose info to us, and we’re not going to be able to adequately represent them,” Austin said.
Austin said that most of the lawyers she’s talked with feel it’s a terrible thing to see an attorney indicted for simply doing her job. Felsen has talked to other criminal defense lawyers and all see the case as “a shocking outrage,” she said. Though many attorneys feel the DA’s interpretation of the law is extreme, the fluidity of cannabis law and its evolving nature make it difficult when it comes to its application.
“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,” Eugene Iredale, McElfresh’s defense attorney, said.
Michael Crowley, a criminal defense lawyer and member of the San Diego County Bar’s Ethics Committee, has been watching the McElfresh trial from afar. What troubles him about the case is the lack of clarity around cannabis law.
Though the city of San Diego legalized recreational pot dispensaries in late January, it remains the only city in the county to do so. Statewide, the design of regulations is still unknown, as state officials are preparing for the 2018 rollout.
“It’s one thing to pass legislation, it’s another to implement it. That’s where attorneys come in. 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,” Crowley said.
The case has also laid bare a disconnect between the popular vote – the majority of county voters supported Proposition 64, the statewide measure legalizing recreational marijuana – and county officials’ stance on marijuana.
The County Board of Supervisors voted in March to ban any new marijuana businesses and phase out old ones in unincorporated areas of the county.
“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 DA’s office], whether it be subtle, or expressed, are being pressured by political forces within the Board Supervisors who have shown disdain for the law that the people voted for overwhelmingly,” Crowley said, “They are using their own political views to thwart what the people voted for.”
Felsen, who has years of experience as a cannabis attorney, is used to seeing the DA come down hard on the cannabis industry, recalling aggressive prosecution toward minor cases. Raids on medical marijuana dispensaries were common throughout Dumanis’ term as district attorney.
The DA’s office is simply upholding the law, said spokeswoman Tanya Sierra.
“The DA’s Office will enforce the letter and the spirit of the new law, which includes protecting safe access to marijuana and protecting consumers from illegal business practices that could jeopardize public health,” Sierra wrote in an email.
Sierra said the Med-West case isn’t really about marijuana.
“It’s about safe access and a company that used toxic chemicals and pesticides in their products, potentially putting consumers’ health at risk,” Sierra said. One of the charges against Med-West is the chemical extraction of THC using “flammable, volatile and/or toxic chemicals,” a process outlawed by a state health code.
Part of the DA’s strategy to waive McElfresh’s attorney-client privilege has been to turn to federal law. Marijuana remains illegal at the federal level under the Controlled Substances Act.
Yet Halgren, the judge who presided over the July 7 hearing, said that federal law would not be considered in the case, since the search warrant was written under state and local provisions.
In a July 21 hearing, Del Portillo, the deputy DA, tried to argue that the search of the computer should be treated like a file cabinet, using broad terms like “ethanol” and “THC” or “marijuana” as search terms, to draw out any evidence.
Iredale argued such a search would be too broad and would put all of McElfresh’s past clients at risk of forfeiting their privilege.
Halgren sided with Iredale, saying that the “starting point” was to limit the search of the computer to the names and entities specified in the warrant with the exception of McElfresh’s name. Halgren added that the prosecution would be able to argue for other search methods in future hearings. All data collected in the search has been under review by a neutral, third-party expert assigned by Halgren to decide whether items are privileged.
Though the preliminary method of how to search McElfresh’s records was decided, Halgren said the court would revisit the prosecution’s argument on the crime-fraud exception in light of Rogers’ ruling on the April 2015 email between McElfresh and Slatic.
Iredale called the prosecution’s attempts to reach into McElfresh’s privileged conversations an “excessive overreach,” “unprecedented,” “truly extraordinary” and “frightening.” Though Iredale said he feels like he successfully preserved McElfresh and her clients’ confidentiality, some remain skeptical.
Omar Figueroa, a cannabis attorney and law ethics professor, took the trip from his offices in Sonoma County to attend the July 7 hearing to support McElfresh. He said that even with Halgren’s ruling limiting the scope of the computer search, he fears an appellate court could side with the DA, if it reaches that point.
For Austin, it’s still a “wait-and-see” situation. “We would hope the judicial system will work the way it’s supposed to work. We would hope that it goes the way you would want to see those protections and not have the chilling effect on the clients,” she said.
Correction: An earlier version of this post referred to Gina Austin as a lawyer representing Citizens for Patient Rights. Austin represents one of Jessica McElfresh’s former clients but does not represent Citizens for Patient Rights.