In California and other states that have legalized weed for recreational or medical purposes, it is not so simple. In addition to the constant threat of federal prosecutions, some local prosecutors have continued to harass and prosecute marijuana growers and users.
Now, prosecutors in San Diego have charged a marijuana defense lawyer, Jessica McElfresh, with multiple felonies based on what should have been a privileged email communication with a client.
What Kind of Advice Can a Marijuana Attorney Give Me?
The first rule of criminal defense ethics is that the attorney should not be the one who goes to jail. A defense lawyer’s job may include many things such as:
- Counseling their client on how to defend against criminal charges;
- Providing a buffer between their client and law enforcement or prosecutors;
- Protecting their clients’ constitutional rights;
- Investigating the facts of their clients’ case including the potential witnesses and law enforcement officers involved;
- Negotiating with the prosecution on behalf of their client;
- Trying their client’s case to a jury; and
- Doing whatever is necessary to win their client’s case within the bounds of the law and the ethics rules.
There may be a fine line between an aggressive and effective criminal defense and participation in the crime. Defense lawyers need to know where that line is and be comfortable walking up to it without ever crossing it.
When Does an Attorney’s Advice Go Too Far?
Lawyers cannot advise a client as to how to commit a crime. We can advise a client as to what the law says and how to avoid committing a crime. If there is any hint that a client intends to use that advice to commit a crime instead of avoiding it, the attorney must withdraw and stop counseling that client. If they do not, they are in danger of becoming involved in a criminal conspiracy or accessory before the fact to a crime.
Lawyers also cannot advise a client as to how to cover up a crime. The classic example is when a client informs their attorney that they are in possession of evidence that would damage their case or expose them to additional charges. When the client asks, “What do I do with it?,” the obvious answer may be, “Get rid of it immediately.” If an attorney gives this advice or helps in any way to destroy evidence or to cover up a crime, the attorney has potentially exposed themselves to prosecution for accessory after the fact, conspiracy, compounding a felony, obstruction of justice, or other criminal charges.
On the other hand, the attorney cannot take the evidence or turn it over to the prosecution without creating more ethics issues. The only advice that an attorney can give in this situation is, “I cannot advise you as to this.”
Will My Communications With My Attorney be Confidential?
At Coastal Law, LLC, we do everything we can to ensure that your communications with us are confidential. We will never advise you as to how to commit or cover up a crime, but you can count on us to fight for you and to do everything that is ethically and legally possible to win your case.
Schedule a free consultation to discuss the facts of your case by calling (843) 488-5000 or filling out our online form.