Are Prosecutors Trying to Undercut Lawyer-Client Privilege?

This May, Jessica McElfresh was arrested at gunpoint in San Diego, and local prosecutors soon brought several still-pending marijuana-related felony charges against her, including conspiracy, obstruction of justice, and manufacturing a controlled substance.

What begins to make this highly unusual is Ms. McElfresh’s occupation: she’s an experienced criminal defense lawyer, regarded as one of the city’s premier marijuana lawyers. In fact, she’s worked primarily in that area of law since joining the bar seven years ago.

The charges stem from a January 2016 raid by tactical police on Med-West Distribution, a medical marijuana dispensary that is one of McElfresh’s clients. The company’s owner, James Slatic, was suspected of illegally extracting and selling cannabis oil from plants being grown for medical marijuana.

Prosecutors claim an email from McElfresh to Slatic, reporting on an inspector’s visit to a Med-West facility, shows she knew of illegal activities there and helped keep the inspector from finding evidence of it. But McElfresh and her supporters say prosecutors have made an undeservedly suspect reading of her message, which they claim was related to a different concern in the complex and fast-changing legal status of marijuana law, where the state is still working on rules to implement recently-voted legalization of recreational marijuana, and San Diego has adopted its own complex set of additional rules on all marijuana merchants, which vary by location within the county. For her part, McElfresh has pleaded not guilty to all charges.

What’s causing her case to gain widespread attention and concern among other members of the criminal defense bar is prosecutors claims they have the right to access all her client files, challenging the basic principle of lawyer-client confidentiality. The prosecution counters the general rule of lawyer-client communication confidentiality contains a “crime-fraud” exception, for when a lawyer is shown to have cooperated with another defendant to commit or cover up a crime.

The prosecutors have already had a few minor setbacks. A judge has overturned their efforts to confiscate assets held by Slatic, his wife, and their two college-age daughters. Similarly, a judge has ordered prosecutors to return McElfresh’s medical records they had seized. A judge has asked for additional briefings on the scope of prosecutors’ other demands, which include access to all the GPS location data on her cell phone for the past three years.

McElfresh’s lawyer call “unprecedented” and “frightening” prosecutors’ claims they are entitled to access all her records (not just those related to Slatic or Med-West), whether or not it was covered in their search warrant or any probable cause was shown.

In one of the three hearings held thus far on how broadly prosecutors can examine McElfresh’s client communications – sessions widely attended by other California lawyers with clients in the marijuana industry — a prosecutor asked the judge to allow searching by broad keywords, to turn up any document in her records that contained terms like “marijuana” or “THC.”

McElfresh’s lawyer strenuously argued allowing such a broad search could give prosecutors documents from just about every client McElfresh has ever represented through her career, stripping all those clients of the confidentiality privilege they had a right to expect in communications with their lawyer. A ruling on how broadly prosecution can search and access McElfresh’s records is expected by the end of September.

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