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Joint Client and Post M&A: Maintaining Attorney-Client Privilege During Transactions and Litigation with an Entity Client


In-house and outside counsel representing business entities understand they represent the entity, rather than the individual owners or executives – but maintaining attorney-client privilege when representing an entity is harder amid litigation that affects subsidiaries, parent companies, and individual owners; and transactions in which the buyer could wind up owning the privilege post sale. Learn how to safeguard attorney-client privilege for an entity amid founders unable to understand the line between themselves and their company, litigation as interests diverge among parties on the same side, and transactions in which the buyers of an entity will soon own your client.

Jessica C. McElfresh, Founder and Principal, McElfresh Law, Inc.

Attorney Jessica McElfresh delivers the legal guidance and advocacy it takes to thrive in California’s cannabis industry. As a successful defense attorney, Jessica was at the forefront of marijuana legalization in California, and uses that passion and skill to represent people at all stages of the state’s legitimate marijuana market. From retail cannabis dispensaries, large cultivators, testing facilities, delivery services, investors, and marijuana entrepreneurs, Jessica provides individuals and cannabis businesses with what they need to flourish. This includes full service legal assistance with formation, zoning, regulatory compliance, licensing, land use, employment, and everything in between.

Why Cannabis?

Even as a young lawyer, Jessica never saw the cannabis industry as something that needed to be normalized. Instead, her work focused on highlighting how normal it already was.

She saw the government waste, how the current laws violated people’s rights, and wanted to be part of building something new.

Jessica has worked in cannabis law and policy since 2010. She focuses on local and state applications, land use, regulatory compliance, and business law.  Jessica 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, Encinitas, Lemon Grove, 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 is a former Chair of the International Cannabis Bar Association’s Professional Responsibility and Ethics Committee and its Continuing Legal Education Committee, and a former member of its Board of Directors.  Jessica has spoken at conferences and taught continuing legal education classes for organizations and law schools including the California Lawyers Association, Practising 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).

Michelle Mabugat, Partner, Greenberg Glusker LLP

Michelle Mabugat has a broad-based corporate and transactional practice that focuses on advising entrepreneurs and high-growth companies on matters that span the business lifecycle, from start-up through exit.

Often acting as outside general counsel, she assists clients with their general corporate and day-to-day transactional needs as well as their most critical transactions, including early- and growth-stage equity and debt financings, joint ventures and strategic alliances, licensing deals, and mergers and acquisitions (M&A) in both distressed and non-distressed situations. She also provides strategic advice to boards, management teams and investors on sensitive issues related to corporate governance, shareholder disputes, regulatory compliance and risk management.

She has earned significant accolades in her field, including being listed in Best Lawyers: Ones to Watch® in America in 2024 and Southern California Super Lawyers Rising Stars from 2021 through 2023.

Michelle represents clients across all industries but, as Co-Chair of the firm’s Cannabis Industry Group, she has significant experience representing clients in the cannabis sector. Widely recognized as one of the nation’s leading authorities on cannabis law, she has been named a “Cannabis Law Trailblazer” by the National Law Journal and a “Top Cannabis Lawyer” by the Los Angeles and San Francisco Daily Journal. 

An active member of the Los Angeles community, Michell provides pro bono counsel for the Cannabis Equity Retailers Association and to low-income applicants who qualify for the Los Angeles Cannabis Social Equity Program. She is also an Executive Committee Member for the Primerus Cannabis Practice Group; a Diversity, Equity & Inclusion (DE&I) Committee Member for the Association for Corporate Growth - Los Angeles Chapter (ACG-LA); the Lead Member of the Policy Subcommittee for the Los Angeles County Bar Association (LACBA) Cannabis Section; and an Amicus Committee Member for the International Cannabis Bar Association.

Deborah Wolfe, Attorney, Legal Ethicist, Wolfe Legal Solutions, PC

Deborah Wolfe is the founder of Wolfe Legal Solutions, PC. Deborah is an experienced trial attorney who has served on the State Bar of California Legal Malpractice Law Advisory Commission, and has been a member of the San Diego County Bar Association’s Legal Ethics Committee since 2006. She is a past president of CASD, and a two-time recipient of the Trial Lawyer of the Year award, as well as numerous Outstanding Trial Lawyer awards. In 2017, Deborah received the Daniel T. Broderick, III award for civility, integrity and professionalism. She frequently testifies as an expert witness in ethics and standard of care in legal malpractice/breach of fiduciary duty cases, in addition to assisting lawyers with ethics consulting, trial strategy and support.

Katy Young, Managing Partner, Ad Astra Law Group, P.C.

Katy M. Young, Esq. MANAGING PARTNER, Ad Astra Law Group, LLP in San Francisco, CA 

 
Katy represents both plaintiffs and defendants in business disputes, real estate claims and intellectual 
property litigationwith a unique focus on matters for cannabis industry litigants. Katy is one of the most 
experienced cannabis-focused civil litigators in the country and has  been recognized by the Daily Journal 
for her work. She is passionate about the industry and enjoys the challenges inherent in litigating cases 
on the cutting edge, thereby shaping policy. Katy is graduate of University of San Francisco School of Law 
and University of the Pacific where she was a scholarship athlete. She has been named a Northern 
California Super Lawyer in 2022 and a Rising Star from 2014 through 2022. In 2018-2022, she was named 
to Benchmark Litigation’s Top 40 Under 40 Hot List.  She also served as the President of the InterNational 
Cannabis Bar Association for four years, and was recently nominated to join the Edward J McFetridge Inn 
of Court executive committee. Katy is active in other networking organizations including the ProVisors 
Cannabis Affinity Group, the Bar Association of San Francisco Cannabis section, and the California 
Lawyers Association Cannabis Working Group.

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