By John Schroyer
The week before Memorial Day, California lawyer Jessica McElfresh was charged with multiple felonies by the San Diego County district attorney.
Her alleged wrongdoing? Conspiracies to commit a crime and obstruct justice and manufacturing a controlled substance.
But a number of cannabis industry attorneys have another word for the charges: retaliation.
The reason, they say, is simple. District Attorney Bonnie Dumanis was embarrassed that her office lost in court to McElfresh when a judge ruled the DA must return $100,000 to James Slatic and his family. The money was confiscated during a Drug Enforcement Agency raid of Slatic’s Med-West Distributors in January 2016.
Several cannabis attorneys suggested Dumanis’ action was in response to her office’s defeat. They also warned the case could have a negative impact for other legal cannabis businesses.
“This is clearly a vindictive prosecution arising from the court’s order that they return the seized funds,” said Henry Wykowski, a prominent MJ attorney from San Francisco. “As bad as that is in and of itself, this is clearly calculated to send a chill to the attorneys that defend cannabis businesses, that they can become targets.”
Shabnam Malek, one of the founders of the National Cannabis Bar Association (NCBA), said she was “shocked” by the news McElfresh was being prosecuted.
“This is extraordinary to me. I’ve never heard of anything like this happening,” said Malek, also of San Francisco.
Leland Berger, an Oregon-based member of the NCBA, said he was concerned “that the prosecution coming, following her successful obtaining the return of funds … gives the impression that the prosecution is retaliatory.”
Even the most zealous prosecutors who go after cannabis businesses typically don’t also charge the business’ lawyer, precisely because attorneys are supposed to be above the fray. That’s what makes McElfresh’s situation stand out.
Many cannabis attorneys are viewing it the same way as Berger.
“An attack on any of us is an attack on all of us,” he said simply.
McElfresh declined comment for this story.
But Wykowski said he spoke with McElfresh after the charges were announced and offered not only emotional support but logistical and legal help as well.
“The entire cannabis community, and especially the cannabis bar, should stand up on her behalf,” Wykowski said. “I’ve already told her that whatever I can do, I will do. … This is just not proper.”
In a statement, the NCBA said it’s “gravely concerned about the chilling effects that the handling of this case may have on attorneys serving cannabis industry clients, possibly resulting in the inability for this new industry to access competent legal services.
“Several state bars have recently acknowledged the importance of ensuring that state-lawful cannabis businesses have access to legal services,” the statement continued. “Access to legal services is necessary to help the cannabis industry comply with the myriad regulations designed to keep the public safe and marijuana out of the hands of children. Prosecutions like this one will undoubtedly serve to deter lawyers from representing clients in the cannabis industry for fear they, too, may be prosecuted.”
Wykowski agreed the San Diego County DA’s action was “obviously calculated to have a chilling effect on the representation” for the cannabis industry.
What happens next?
The case against McElfresh may go all the way to trial, Wykowski said, in part because the charge of conspiracy to commit a crime is “so broad that anybody can be sucked into it.” But the case could be dismissed before that, he said.
“I’ve read the complaint,” Wykowski said, “and in my opinion, she did not cross that line.”
Wykowski and Berger agreed McElfresh’s case is an outlier that, in all likelihood, won’t become commonplace across the nation. But the case still must play out and could take a year or even longer, the attorneys said.
In the meantime, McElfresh will be able to continue to practice law, even with the cloud of prosecution hanging over her, Wykowski said.
“I don’t see an impartial jury convicting either (McElfresh or Slatic),” Wykowski said. “But I would hope that a jury would see, in Jessica’s case, that she was merely fulfilling her ethical obligation to represent her client, and that’s not a crime.”
John Schroyer can be reached at firstname.lastname@example.org