The Matter of Jessica McElfresh
On September 8, 2017, the National 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 NCBA, The Law Office of Omar Figueroa drafted an amicus brief on behalf of NCBA 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 NCBA 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 NCBA Executive Director Christopher Davis at email@example.com.
Documents listed in reverse chronological order, with most recent filings at the top of each section.
Filed by NCBA
Filed by the Defense
Filed by the Prosecution