Prosecution of San Diego Pot Attorney Leaves Lawyers on Edge

In the ambiguous world of marijuana law, simply advising a client who operates a marijuana business could theoretically land you in trouble. It’s a fear that is growing among legal professionals since the prosecution of cannabis attorney Jessica McElfresh in San Diego.

McElfresh is facing multiple felony charges. As Voice of San Diego notes, her case “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 evidence for the allegations was an email McElfresh sent to her client about the inspection.

“They’ve been there once and went away, operating under the theory that no actual marijuana is there,” she wrote. “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.”

Prosecutors say her words are evidence that she had “orchestrated a charade for city inspectors.” But McElfresh says it was just part of a larger conversation about a zoning inspection and ensuring that Slatic’s facility would not be confused with a dispensary.

What’s most disturbing to some legal observers is how prosecutors got their hands on this email in the first place. On July 7, Judge Charles Rogers ruled the email was not protected by attorney-client privilege and could be used as evidence to file charges. That sent a chill down many attorneys’ spines.

One of those attorneys is Gina Austin with Citizens for Patient Rights.

“We have several clients who may also be in the files that were seized by the DA,” Austin said. Another San Diego-based criminal defense lawyer, Michael Crowley, said the case underscores the confusion surrounding cannabis law in this country.

In waving the attorney-client privilege, the DA relied in part on federal statute, which still prohibits marijuana per the Controlled Substances Act.

“The only thing [McElfresh] did wrong,” said her attorney Eugene Iredale, “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.”

If that’s true, then a number of other attorneys could be at similar risk of prosecution and denial of attorney-client privileges. They’re now watching and waiting to find out McElfresh’s fate.