Given that marijuana remains illegal under federal law, being a cannabis attorney is dicey by nature. Just ask Jessica McElfresh, a prominent cannabis attorney in San Diego. In May, Bonnie Dumanis, San Diego’s District Attorney, charged McElfresh with seven felonies–five counts of conspiracy to commit a crime, one count of manufacturing a controlled substance, and one count of conspiracy to obstruct justice. Dumanis also filed suit against James Slatic, a client of McElfresh and the owner of MedWest Distribution, as well as four of his executives.
But when it comes to McElfresh, the lawsuit begs an interesting question: How does attorney-client privilege fit into the space of cannabis law?
On April 28, 2015, the MedWest Distribution center was scheduled for a city inspection. According to the charge summary, McElfresh told a city investigator that MedWest didn’t conduct extractions or have cannabis onsite, leading inspectors to believe the business was only a packaging and paper company. “McElfresh kept a close eye on one of the inspectors…retired San Diego PD investigator Gary Jaus,” the summary says. “McElfresh tried to keep Jaus focused on her and the papers, with the goal of having inspectors leave under the theory that no actual marijuana was on site.”
The evidence the DA is using to prove McElfresh is guilty, however, is where the suit gets sticky. Eight months after the inspection McElfresh sent an email to Slatic saying:
“[The inspectors] were clearly suspicious. I had to keep a very, very close eye on the retired SDPD investigator…Gary Jaus…. He’s a very smart man, and I had to walk a very fine line between being very nice and trying too hard to keep him focused on me,” she wrote. “I didn’t flirt (wouldn’t have worked), but I just kept focusing on the papers…. I’m convinced they walked away knowing it wasn’t a dispensary in the typical sense… but it probably seemed like something other than just paper. That just wasn’t what they were under mandate to look for, and hey, we did a very good job. They’ve been there once and went away, operating under the theory that no actual marijuana is there. 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.”
Despite seeming suspicious, there are a couple reasons using this as evidence is problematic. First, conversations between attorneys and clients are legally confidential thanks to attorney client privilege. So anything that attorneys and clients talk about can’t be used against them. Chris Glew, the renowned Orange County cannabis lawyer, explains that it’s questionable how the prosecution could’ve filed the case solely from an email string– even if there’s a warrant that allows them to see the information.
“You’re looking at the fundamental concept of constitutional protection,” says Glew. “You have the right to communicate with your attorney and no one can use that evidence against you. That email is an attorney-client privilege document, so my biggest question is what other evidence do they have to suggest that this person was actually helping facilitate the commission of a crime? It’s a slippery slope because unless there’s a lot more compelling evidence, this is encouraging all attorneys to never provide any communication with their clients in written form. It’s basically crippling people’s right to have an effective defense.”
According to McElfresh, the prosecution has tried to argue that attorney client privilege doesn’t exist in the cannabis space due to the fact it’s federally illegal. The judge has decided that argument isn’t valid, however. That said, the email between McElfresh and Slatic is still being used as evidence alleging that McElfresh is guilty of (apparently) seven felonies.
The second flaw in this case is that the email blurb is taken out of context. Glew explains that on any average day, he’ll start talking to a client on the phone about something and then have to go into court. He’ll be busy for a few hours, and the client will text him about a number of things. After court he might be going through his email and communicate with the client that way. Sometimes the client calls to clarify a few things. “If you only look at the emails exchanged between [my clients and me], it might look a little strange because you don’t have the entire conversations or the proper context.”
When we asked McElfresh about the email, her response was exactly that: It was taken out of context. “The email was also sent eight months after the code enforcement inspection at which Mr. Slatic asked me to represent his packaging company and only his packaging company,” she says. “Generally, what we were discussing were some possible licensing regulations of a program that the city of San Diego ultimately did implement. We were discussing the viability of the zoning of whether 8210 Engineer Road meets the requirements under that program.”
McElfresh goes on to explain that Slatic asked her a couple days before the inspection to represent the packaging company and told her that his other lawyer was going to handle everything else. According to McElfresh, Slatic told her he also wanted her to be onsite for the inspection because of her history and knowledge of code enforcement examinations. “While I was in one room with a set of inspectors showing them packaging materials, the other lawyer was in a different room having a conversation I was not privy to with a deputy city attorney, and I don’t know what he said.”
At the start of the case, McElfresh, Slatic and two others, were ordered to waive their Fourth Amendment rights to remain at liberty. Doing this allows police the right to search their homes, cars, offices and even pockets without a warrant. As a result, McElfresh’s home was raided and they took nearly 10 million gigabytes of information from her computers, tablets, phones, TV, etc. According to the San Diego Tribune, police found a tablet in a bowl with water in it. They determined it destruction of evidence. But McElfresh, who lives with her mother, says that wasn’t the case.
“The iPad was my mother’s, not mine, and it had been in there for six weeks,” she said. “My mom soaks tech gadgets because she doesn’t want to risk identity theft. But the DA’s team was very intent that they were right and went on the record saying this. They called the computer lab the night before the hearing commandeered an analyst because their usual one way on vacation, and made the analyst pull the iPad off the shelf and pop it open. The analyst looked at the insides and said ‘Wow. This thing is very, very corroded. The DA asked if it had been in there for an hour (asking to imply that it had been destroyed because it was evidence), and the analyst said, ‘No, if they’re saying this was soaked for weeks, that makes absolute sense’.”
McElfresh’s case is fascinating for multiple reasons, one of which being that what ever becomes of the suit will determine a lot for cannabis attorneys. It will either reemphasize their rights or shed light on the law’s insensitivity to canna-lawyers. Another interesting fact at play in this case is that while McElfresh was in law school, she interned at both the San Diego City Attorney and DA’s office. Now she is the focus of their wrath. McElfresh and her legal team went to court for an Amicus Brief last Friday, September 8th. Updates to come.
This is a developing story, updates to come as case unfolds.