MCLE Self-Study Article: Attorney Ethics and Cannabis: Conflicts of Laws, Conflicts of Interest, and Attorney-Client Privilege for Cannabis Practitioners

Check the end of this article for information on how to access one MCLE self-study ethics credit.

Jessica C. McElfresh

Jessica C. McElfresh of McElfresh Law, Inc. has focused on cannabis licensing, regulatory compliance, land use, business transactions, and license discipline defense since 2010. She represents clients throughout California and the cannabis supply chain, from cultivators to storefront retailers. Jessica has consulted for the American Civil Liberties Union Foundation of Northern California regarding California’s Proposition 64, and she is a member of the International Cannabis Bar Association’s Professional Responsibility and Ethics Committee.^*

All California attorneys must follow the Rules of Professional Conduct.¹ The Rules of Professional Conduct require attorneys to advise their clients to act lawfully, manage conflicts of interest, and protect attorney-client privilege. Cannabis lawyers must pay special attention to these ethical obligations for three reasons. First, although cannabis is legal in the State of California, it remains illegal under federal law. Accordingly, attorneys representing cannabis clients risk running afoul of federal law, even if they are acting in line with state law, and must advise clients not only to follow state law, but also to consider the consequences of violating federal law. Second, the conflict between state and federal law means cannabis lawyers face the risk of the crime-fraud exception vitiating attorney-client privilege. Third, cannabis is a rapidly-growing industry. This rapid growth in the industry results in two conflicts pitfalls for attorneys: one, the potential conflicts that arise when representing clients who wish to obtain cannabis licenses, and two, the allure of entering a business agreement with a client.