New York Law Journal

The cooperation process in most federal white collar criminal cases starts with an attorney proffer. Typically counsel for a potential witness meets with the prosecutors, either in person or telephonically, to provide a preview of what the lawyer “hypothetically” anticipates his or her client would say about the conduct at issue.

Authors: Evan T. Barr

In some exigent situations, the government may ask for an attorney proffer to be provided even though defense counsel has not necessarily had an opportunity to fully debrief the client.

Even under normal circumstances, the attorney proffer usually is made well before counsel has seen and considered all of the relevant evidence in the case. Not surprisingly, as a result, there can be discrepancies between the attorney proffer and the testimony that the client ultimately may give pursuant to, for example, a formal cooperation or non-pros agreement with the government.

In those instances, to ensure compliance with disclosure obligations, various federal prosecutors around the country have adopted the practice of producing to the defense any notes or reports of interview memorializing attorney proffers made on behalf of a government trial witness.

Defense counsel at trial may try to use this material as fodder for cross-examination of a government witness, especially given the likelihood of discrepancies, even though it may seem unfair to confront a witness with a statement made outside their presence.

Furthermore, if the witness is either unable or unwilling to acknowledge an inconsistent statement purportedly made on his or her behalf in an attorney proffer, the lawyer who made the original proffer may even be hauled into court to testify.

This article will explore the law in the Second Circuit on the use of attorney proffers under these circumstances and discuss how counsel can minimize the risk of becoming, in effect, a witness against your own client.

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