/ 1 min read / New York Law Journal

Prosecuted for a Proffer

A recent development in the corruption prosecution of Senator Robert Menendez should set off alarm bells in the white-collar defense bar. Specifically, the New Jersey senator and his wife have been charged with obstruction of justice for allegedly causing defense counsel to make false and misleading statements in a proffer to the U.S. Attorney’s Office.

Authors

Evan T. Barr

While prosecutors have often sought to use statements made by counsel against defendants, bringing criminal charges against a client based on information conveyed during an attorney proffer is unprecedented. In so doing, federal prosecutors in the U.S. District Court for the Southern District of New York have undermined the attorney-client relationship and discouraged defense counsel in other cases from coming forward to convey their client’s side of the story.

Attorney Proffers

In an attorney proffer, defense counsel offers a hypothetical preview of what they believe the client would say about the facts at issue. Often the government will ask for a proffer to assess the usefulness of the client as a potential cooperating witness. Defense counsel also may choose to make a so-called innocence proffer in the hopes of dissuading the prosecutor from bringing a case. Either way, the attorney proffer plays a key role in facilitating the transmission of information while insulating the client (for the time being) from direct exposure to questioning. But there are pitfalls to the proffer. It may prematurely lock counsel and client into a version of events before the defense team has had sufficient time to fact-check. Discrepancies may arise between the proffer and testimony that the client later provides, especially if the initial account was obtained under exigent circumstances. Those differences can undermine the credibility of the client and the lawyer. If the client ends up on the witness stand, proffer-related discrepancies can become fodder for cross examination.

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