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.
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.