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Attorney Proffers: Practical Considerations and Some Law Too
One of the frequently used tools in a white-collar defense attorney's kit — the attorney proffer of facts on behalf of a client — is not uniformly defined and will often proceed without any written or express oral understanding as to what ground rules apply. Unlike client interviews, which typically are governed by a written proffer or so called "Queen for a Day" agreement that provides the client certain limited but defined protections against his or her statements being affirmatively used in a later proceeding, federal prosecutors generally pronounce no formal policies regarding attorney proffers.
Attorney proffers can be used for a host of reasons — to demonstrate innocence, to lay out facts as a foundation for a plea deal, or to show how a client can be valuable to the government as a witness. Attorney proffers may be highly beneficial for both sides: They can provide the defense lawyer with an early opportunity to influence the government's view of the case and allow prosecutors to learn information that may properly inform their view of an individual or entity and further their investigation without negotiating immunity or addressing other testimonial issues. For defense counsel, a critical but sometimes elusive prerequisite is to have done enough investigation and spent enough time with the client to have sufficient confidence that the information to be proffered is reliable. Handled with care, however, an attorney proffer can provide a critical opportunity to gauge a prosecutor's reaction while limiting the risk of compromising the client's potential defense at trial.
Because they can be so useful to both sides, prosecutors and defense lawyers often have a strong incentive to find a way for such conversations to proceed without putting either side at undue risk. Custom and experience, combined with the modest amount of legal authority in the area, provide a few important guideposts for counsel. Counsel making a proffer should take care to couch their statements hypothetically, thereby putting prosecutors on notice that they are not intended to be, and are not in a form capable of being, used against their client. Counsel should not be surprised to see prosecutors later disclose information provided in attorney proffers to another defendant pursuant to the government's duties to disclose exculpatory information or prior witness statements. Finally, making attorney proffers on behalf of corporate entities in connection with internal investigations poses risks that the information conveyed may be deemed to have waived the work product protection otherwise applicable to such investigation.
Legal Parameters and Case Law
The case law addressing the principles around the potential admissibility of statements made in attorney proffers generally arises under three rules of evidence. Pointing toward admissibility is the rule that statements are not hearsay and thus may be admissible as a statement of a party-opponent if made by a person whom the party authorized to speak on the subject or made by the party's agent on a matter within the scope of that relationship. See, Fed. R. Evid. 801(d)(2)(C) and (D). Tending to cut against admissibility are Fed. R. Evid. 410, which provides that statements made during plea discussions with a prosecutor are inadmissible against the defendant if no plea resulted or the plea later was withdrawn, and Fed. R. Evid. 408, which generally provides that conduct or a statement made during compromise negotiations about a claim is not admissible on behalf of any party regarding the validity or amount of a disputed claim.
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