Most cannabis attorneys are aware that they should have a disclosure in their retainer agreement that explains the conflict between federal and state cannabis law and associated client exposure. An often overlooked implication of this conflict, however, is the impact it can have on attorney-client privilege with respect to litigation in federal court. Clients should be advised that federal law (i.e. the federal crime-fraud exception) will likely apply in a federal prosecution and/or forfeiture action, even if a state has carved out an exception for cannabis under state law. Application of the federal standard could lead to the admission of testimony or other evidence that may not otherwise be admitted in state court. Update your retainer agreements and advise cannabis clients accordingly!
DISCLAIMER: THIS INFORMATION IS STRICTLY EDUCATIONAL AND DOES NOT CONSTITUTE LEGAL ADVICE.