Advocacy For Lawyers
The International Cannabis Bar Association (INCBA) plays a unique role as the hub for attorneys in the cannabis industry, a safe place where lawyers can come together to discuss the difficult legal issues that they are facing and to find mutual support for both their professional endeavors and the personal stresses that come with practicing law in such an unsettled area.
Our members represent businesses across the spectrum in the cannabis industry, from the legacy “mom & pop” operators in Northern California to the multi-state conglomerates, and everything in between. Because we represent such a diverse set of interests, it is inappropriate to involve ourselves in traditional advocacy that promotes certain regulatory schemes, and therefore certain sets of our members’ clients’ interests, over others.
Instead, our Association advocates for a stronger cannabis industry through supporting our members in their daily practice of law. We provide education that allows our members to provide their clients with top-quality legal services, which helps the industry shed its historical stigma by promoting a transparent and efficient industry with basic protections for consumers and employees. We provide networking events that allow our members to help their clients grow across jurisdictions and help our members serve their clients across substantive concentrations by importing lessons learned from other highly-regulated industries. We provide ethics support so that our attorneys better understand the scope of permissible advice and that advice that may trigger discipline from their state bar, and when one of our lawyer-members is threatened with an overreaching disciplinary action or an unwarranted criminal complaint, the Association provides support to our members and the legal profession as a whole. It is our mission to make our attorney-members more comfortable in their practice of law in this unique industry, so they can operate without fear of forfeiting the protections available to lawyers that practice in more traditional industries.
One of the way that our Association engages in advocacy on behalf of the legal profession is through amicus briefs. One of our members, Jessica McElfresh, was charged, along with a client, or various felonies under California state law. Among other things, the San Diego DA sought to invoke the crime-fraud exemption to attorney client privilege predicated on a stipulated breach of Federal Law (the CSA) in the state-law criminal action. The DA sought the crime-fraud exception for all of Ms. McElfresh’s client files, not only those directly involved in the then-pending action.
As an attack on the legal profession and the practice of law in a manner that would chill legal representation and that would all but eliminate clients’ trust in privileged nature of their communications with an attorney that represented cannabis clients, the Cannabis Bar Association had no choice but to step in on behalf of the legal profession.
On September 8, 2017, the International Cannabis Bar Association filed our first Amicus Brief as an organization. The brief was filed in the matter of attorney Jessica McElfresh, one of our founding members who is currently facing felony criminal charges for conspiracy (with her client) and obstruction of justice.
At the request of INCBA, The Law Office of Omar Figueroa drafted an amicus brief on behalf of INCBA that details the dangers of such a broad search, and the chilling effect that the search will have on attorney client relations. This brief was joined by Reason Foundation, Law Enforcement Action Partnership, Henry Wykowski, Esq., and the Association of Cannabis Professionals.
Regardless of the reason for Jessica’s charges, the effects of this attack on the attorney-client privilege range far beyond the cannabis industry and could signal the beginning of the erosion of the attorney client privilege itself.
A copy of the brief filed on behalf of INCBA is available here.
An Overview of the Impact of this Case on the Attorney Client Privilege
In the case, the District Attorney for San Diego seized attorney McElfresh’s electronic devices, and claims that each and every file on those devices is covered by the operative search warrant. The prosecution claims that attorney files unrelated to the present matter or the specific enumeration of entities in the search warrant are within the warrant’s scope. Further, the prosecution claims that the present search should be equated to that of of a drug dealer rather than that of a law office with countless sensitive client files that are clearly outside the scope of the present matter.
Such a broad search is an overreach of prosecutorial power and violates the basic legal principles of attorney client privilege and client confidentiality. The proposed search would uncover virtually every document that attorney McElfresh has ever drafted, attorney work product or not, and would cover client communications, regardless of whether that client engages in the cannabis business, is related do the defendants in the present case, or indeed, is even aware of the current prosecution.
Allowing such a search to go on unprotested sets a dangerous precedent that will discourage the open and candid sharing of information between clients and their attorneys. Attorneys will be less inclined to take clients that engage in the cannabis industry for fear that they may be sacrificing their attorney-client privilege with all existing clients. Cannabis industry participants will be less inclined to seek advice on how to comply with these complex sets of regulations if they know that they will not be privy to the attorney client privilege. Non-cannabis clients will be wary of seeking legal advice from any attorney that has chosen to serve even a single client in this industry for fear that their communications could be seized in an unrelated fishing expedition. And all attorneys are familiar with the lasting effects of negative precedent; the erosion of the attorney client privilege in one highly regulated industry can quickly spread to others, and we must know that an attack on this basic tenant of legal practice has significant ramifications for all areas of law.
We are asking our members to consider how this potential precedent could affect your practice, both with respect to cannabis and non-cannabis clients. We believe that declarations from practicing attorneys to the court, both from those that serve the cannabis industry and those that do not, could help illustrate the potential ramifications this could have on legal practice across the country. For a sample declaration and to submit a declaration on how this could affect you and your clients, please email INCBA Executive Director Christopher Davis at [email protected]
Documents listed in reverse chronological order, with most recent filings at the top of each section.
Filed by INCBA
Filed by the Defense
Filed by the Prosecution