Cannabis attorneys are bound by the same rules of ethics as their non-cannabis law practicing lawyers, such as avoiding conflicts of interest, protecting privilege, and carefully weighing the pros and cons of possibly going into business with clients. However, for cannabis lawyers, these obligations can require greater care and attention for two reasons: one, cannabis law is relatively new practice, growing in states across the United States amid the backdrop of cannabis remaining a Schedule I Controlled Substance; and two, the business of cannabis is growing rapidly, resulting in knock-down drag-out fights for permits that repeat every time a new jurisdiction licenses cannabis businesses.
Key topics to be discussed:
Is cannabis law practice legal, ethical, or permitted?
Crime-fraud exception to attorney-client privilege and other potential challenges to privilege in cannabis practice
Conflicts of interest, including those that arise from choosing to go into business with clients
Date: May 24, 2023
Jessica C. McElfresh | McElfresh Law, Inc
Jessica C. McElfresh of McElfresh Law, Inc. has worked in cannabis law and policy since 2010.
She is the Chair of the International Cannabis Bar Association’s Professional Responsibility and Ethics Committee and a member of its Board of Directors. Jessica focuses on local and state applications, land use, regulatory compliance, and business law. She represents cannabis retailers, distributors, cultivators, manufacturers, and testing labs, as well as landlords and ancillary businesses. She has guided clients through successful applications in jurisdictions such as the City of San Diego, La Mesa, and the County of San Diego.
Jessica has authored or advised on nearly ten local ballot measures to regulate cannabis businesses. Successes include Measure U in La Mesa and Measure V in Lemon Grove in 2016 and Measure H in Encinitas in 2020. As part of this work, Jessica has won writs of mandate at the local and appellate level to compel local governments and registrars of voters to accept petitions and count voter signatures. Jessica represents people facing discipline or loss of state and local licenses, particularly in the cannabis industry. She began her career in criminal defense and continues to take select cases. Jessica has unique experience with the crime-fraud exception to attorney-client privilege and the duties of an attorney under investigation or facing criminal charges. Outside of her law practice, Jessica is an advocate for cannabis and broader drug policy reform. She is an advisory board member for A New PATH, an organization dedicated to promoting therapeutic rather than punitive drug policies. Jessica served as a consultant for the American Civil Liberties Union Foundation of Northern California about how Proposition 64 affects criminal justice reform and individual rights.
Jessica grew up in San Diego and graduated summa cum laude from Scripps College before attending the University of San Diego School of Law on a Dean’s Honor Scholarship. She has spoken at conferences and taught continuing legal education classes for organizations and law schools including the National Cannabis Industry Association Business Summit & Expo, Practicing Law Institute, International Cannabis Bar Association, San Diego County Bar Association, and University of San Diego School of Law. Her publications include “Attorney Ethics and Cannabis: Conflicts of Laws, Conflicts of Interest, and Attorney-Client Privilege for Cannabis Practitioners” (CLA Real Property Journal Vol. 38, No. 4 2020).
I. Is cannabis law practice legal, ethical, or permitted? | 3:00pm – 3:20pm
II. Crime-fraud exception to attorney-client privilege and other potential challenges to privilege in cannabis practice | 3:20pm – 3:40pm
III. Conflicts of interest, including those that arise from choosing to go into business with clients | 3:40pm – 4:00pm