Can I Bring My Lawyer to a Proffer Session??

Q: Can I bring my lawyer to a federal proffer?

A: Yes. In fact, participants normally attend federal proffers with their defense lawyers present. A proffer agreement is a contract that governs information-sharing meetings, and as such, it should specify who may attend.

Q: Why is this the case?

A: Prior to attachment, counsel’s attendance at a noncustodial proffer is governed by the government’s agreement rather than by a Sixth Amendment right.

Q: What is a proffer?

A: A federal proffer is an information-sharing meeting between a subject and the government. Notably, a federal proffer agreement guarantees no immunity or protections in and of itself. It provides no guarantees of reduced charges, no promise of favorable treatment in regard to the underlying investigation, and no promise of sentencing leniency in case of prosecution.

Q: What are the typical scenarios in which proffers are used?

A: Proffers can occur in various federal investigation scenarios. Most commonly, proffers are used:

• Prior to an indictment; and
• Following the filing of charges.

Q: What does receiving a proffer invitation signify?

A: Receiving an invitation to attend a federal proffer is not indicative of charges pending, nor is it indicative of favorable treatment.

Q: Who typically attends a proffer?

A: Federal prosecutors and investigating agents are typically present at in-person federal proffers.

Q: What is the basis for this approach?

A: This approach stems from U.S. Supreme Court jurisprudence. In Rothgery v. Gillespie County, the Supreme Court stated, “A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

What can my lawyer actually do during the proffer?

Q: What can my lawyer do during the proffer?

A: In most cases, prior to charges, the Sixth Amendment to the United States Constitution generally has not yet attached to an interview. As a result, the defense lawyer’s attendance is guided by the parties’ agreement rather than a specific constitutional mandate. While this allows your lawyer to play a key role in your defense, their authority and restrictions may differ from those during a formal trial or other stages of the process.

Q: Will my lawyer be able to take me aside during questioning to consult privately?

A: Yes. Your lawyer can request a break for a private consultation at any point in the interrogation. While no federal rule guarantees that a prosecutor will allow it, the government is typically respectful of defense counsel’s request to consult privately with their client during a voluntary meeting.

Q: Will my lawyer be able to help me answer questions, and will they have any control over what questions the prosecutor asks me?

A: Your lawyer will be able to help you answer the prosecutor’s questions. They may seek clarification, paraphrase or rephrase your answers, and protect information that you are not required to disclose. However, in order for the proffer to be useful to the government, the prosecutor will generally expect to control the scope and flow of your questioning. As a result, you should expect your attorney will not have much control over what questions the prosecutor asks you.

Q: What can my lawyer do about the prosecutor asking me inappropriate questions?

A: Your lawyer will be able to state objections to the prosecutor’s questions during a proffer. However, because it is an informal interview, there will not be a judge present to rule on those objections. Of course, because you are voluntarily participating in the interview, you generally have the option of terminating the discussion, and if the government attempts to ask you questions for which you are entitled to protection, your lawyer will have the option of terminating the discussion by instructing you to stop answering.

Q: Does this mean the government will be able to force me to answer questions without the presence of my lawyer?

A: After the Sixth Amendment attaches to a case, government officials generally cannot deliberately elicit statements concerning a charged offense in the absence of the defendant’s lawyer or without a knowing and voluntary waiver by the defendant.

What protections does a federal proffer agreement actually provide?

Q: Does a federal proffer agreement provide statutory immunity?

A: No. A federal proffer agreement is not statutory immunity. To obtain a grant of statutory immunity, the Department of Justice has to follow a specific statutory process. Instead, in the proffer context, the information protections offered in a federal proffer agreement are not granted in exchange for the truth, but are granted in exchange for voluntary cooperation.

Q: What are the typical terms of a federal proffer agreement?

A: Federal proffer agreements differ in their terms by district, office, and even individual cases. However, there are some common elements. Typically, proffer letters are structured as an invitation to meet. Along with the invitation, the letter will usually explicitly state:

• The prosecutor’s office will not use any statements you make, or information provided in the document in an attempt to induce a charge, the information against you, or the documents in the prosecution’s case-in-chief.
• On the other hand, the letter also typically states, “However, the letter also provides that the government may pursue investigations of the facts and leads disclosed during the proffer and may pursue the prosecution of the accused based on evidence which the government obtains as a result of the proffer.”

Q: What does this mean, practically?

A: This, in effect, means that while the government may not be able to use your own words in court against you, it may use the information you disclose in the proffer to find evidence that is independent of your statements. This then presents a major exception to the offer of protection.

Q: What other exceptions to the offer of protection can be found in a proffer agreement?

A: Typical proffer letters also contain exceptions allowing prosecutors to use the information obtained during a proffer to refute arguments raised by defendants. However, a common example of such an exception is to permit “any statements or information as may be necessary to refute any claims by the subject that the subject did not commit the offense or to impeach the subject’s credibility.” As seen here, this language is narrowly tailored. However, some other agreements permit rebuttals related to “ any claim made by the subject that the subject’s knowledge or culpability does not rise to the level of criminal liability,” or any other claim made by the defendant regarding the “ scope of culpability or any other claim by the subject.” Here, the scope of what constitutes a permissible rebuttal is greatly expanded.

Q: Can I modify the terms of a proffer agreement?

A: Generally, yes. Defense lawyers may propose edits to a proffer letter to narrow the government’s ability to use information obtained during a proffer against the subject. However, prosecutors are free to reject proposed edits, and the prosecutor may insist on a meeting based upon their office’s standard proffer letter.

What should I tell my lawyer before the proffer?

Q: How do I prepare for a federal proffer?

A: Prior to preparing for a federal proffer, participants should follow two core guiding principles:

• Do not guess; and
• Do not minimize.

If you are uncertain about any aspect of your involvement in the subject matter at hand, do not do so. If you are uncertain of any aspect of the facts that you will be asked to recall from memory, you should not present your memories as fact.

Q: What are the risks of making a mistake?

A: In addition to any risks inherent in the government’s underlying investigation, participants who make mistakes during a federal proffer may expose themselves to liability under 18 U.S.C. § 1001. Section 1001 makes it a crime for any person to “knowingly and willfully make materially false, fictitious, or fraudulent” statements to federal agents. Federal agents may lawfully use certain deceptive interview techniques that can make it easier for a person to unintentionally make mistakes, which can put that person at risk of Section 1001 liability. To that end, when preparing for a federal proffer, clients should share all of the relevant information with their lawyers.

Q: What specifically should I share with my lawyer before I begin preparing?

A: Before preparing to attend a federal proffer, participants should share all known information and documents with their lawyers, including:

• All prior statements made in connection with the investigation in question;
• All documents and communications related to the subject of the investigation in question;
• Any uncertainty or memory gaps that the participant may have with respect to the facts of the case; and
• Any information in the participant’s possession or knowledge that is incriminating in nature.

Once participants are fully briefed, their lawyers can then help them prepare to speak and communicate with the government in the manner most consistent with their interests.

Q: Can my lawyer rehearse the interview process with me?

A: Yes. For example, your lawyer can help you rehearse truthful answers, and he or she may test your memory by asking questions.

Q: Can my lawyer provide a script for me to follow?

A: Only if the script is accurate. Your lawyer may not knowingly coach you to present a false account of the events, and the lawyer may not unknowingly prompt you to provide information that he or she knows to be false.

Q: What if I realize that I made a mistake during a federal proffer?

A: After a participant makes a false statement to a federal agent, there is no general “safe harbor” under Section 1001. Although a prompt correction of a statement may bear on a participant’s intent to defraud or mislead, it will not automatically relieve the participant of potential liability for violating Section 1001.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

Are my conversations with my lawyer confidential before a proffer?

Q: If I share information with my lawyer, is it confidential?

A: Yes. If you share information with your lawyer, it will be protected by the attorney-client privilege unless one of the applicable exceptions applies. Attorney-client privilege protects confidential communications between a client and his or her lawyer; it does not protect the underlying facts of the client’s case.

Q: Can I talk to my lawyer if a federal prosecutor or agent is present?

A: Not if you want your communication to be confidential. A federal prosecutor or agent’s presence will eliminate the confidentiality of communications made between a lawyer and his or her client. Unless participants agree in writing, a third party’s presence should be unnecessary, as third-party presence can also waive attorney-client privilege.

Q: Does the common-interest doctrine protect communications between lawyers and their clients?

A: Yes, provided that the common-interest doctrine applies. But again, the common-interest doctrine generally preserves attorney-client privilege by protecting disclosures to third parties. As such, it does not shield facts to which the participants would not be entitled to shield even if they did not have a common interest.

Q: Does this mean that if my attorney and another participant’s attorney both represent the same interest, the attorney-client privilege still applies?

A: Not necessarily. While this means that attorneys may represent the same interest, a joint-defense agreement does not eliminate a lawyer’s duty to assess whether representing a client or working with a third party poses a conflict. For waivable concurrent conflicts, ABA Model Rule 1.7 requires “informed consent, confirmed in writing.”

Q: Does the attorney-client privilege apply to conversations with my lawyer regarding illegal activities?

A: Sometimes. If you disclose past illegal conduct, your discussions with your lawyer regarding this conduct should remain privileged. However, the privilege does not apply to communications in furtherance of an active or prospective crime or fraud; this is referred to as the “crime-fraud exception” to the attorney-client privilege.

Q: Does the attorney-client privilege apply if I made an illegal statement?

A: In most cases, yes. If you make an illegal statement to federal authorities and you later discuss this statement with your lawyer, the attorney-client privilege will apply.

Does agreeing to a federal proffer mean I am snitching?

Q: Why do prosecutors use proffered interviews?

A: Federal prosecutors use proffered interviews to gauge the credibility of subjects and to assess whether any information that subjects may know is useful, corroborated by third parties, and/or likely to implicate third parties in crimes. This includes a possibility of disclosing information that is incriminating to other individuals.

Q: Does this mean that agreeing to a federal proffer is the same as “snitching”?

A: Not necessarily. While providing a truthful account of the facts involved in an investigation may lead to charges against third parties, this may not be the intent of some participants. For example, if a federal proffer is used to seek a plea to a lesser offense, it may be used to clear a participant of wrongdoing or to convince prosecutors to drop charges.

Q: What about a lawyer’s involvement in proffering information for a client?

A: If a client is facing the possibility of prosecution, the lawyer may conduct an attorney proffer with prosecutors and agents to outline the information the client may possess, and determine their clients’ potential interests and risks in proffer sessions before clients participate in a potential proffer.

Q: Are charges filed after proffer sessions?

A: Yes. Prosecutors may still file charges following proffer sessions, especially if a proffer reveals evidence that implicates the target.

Q: Who initiates proffer sessions?

A: Either prosecutors or defense counsel can request a proffer. If a defendant has information that is useful to the investigation, the defense attorney can suggest a proffer. Conversely, prosecutors can request a proffer if they think it is in the case’s best interests to use the target as an informant.

Q: Does a proffer lead to a cooperation agreement?

A: Not necessarily. A proffer may precede a negotiated cooperation agreement, but that is not always the case. As U.S.S.G. § 5K1.1 states, “the government may file a motion for a downward departure based on the defendant’s ‘substantial assistance’ in the investigation or prosecution of another offense.”

Can my lawyer take notes and obtain the interview report?

Q: How does the government record participants’ answers during a federal proffer?

A: Federal agents generally memorialize participants’ answers in reports they prepare after the meeting concludes. The FBI refers to this standard interview report as a Form 302.

Q: How can I use my lawyer’s notes if the government records no details?

A: As specified in the proffer agreement or governed by the local office’s practice, defense lawyers generally may take notes during the interview. Notes that reflect a lawyer’s strategy or mental impressions receive opinion-work-product protection. In the same light, these notes generally are not discoverable by the government.

Q: Can my lawyer obtain the interview report?

A: Not automatically. Just because a report memorializes a federal proffer does not make it discoverable under the Federal Rules of Criminal Procedure. However, Rule 16(a)(1)(B)(ii) requires prosecutors to produce records containing relevant statements by a charged defendant that are in the government’s possession, custody, or control (or that federal prosecutors have “substantial legal control” of). If your attorney cannot gain access to the interview report (e.g., the government’s Form 302 report), then your attorney can seek the production of the report under Rule 16.

Q: When can the government provide the report to my lawyer?

A: Ordinarily, government reports that memorialize the participant’s statements are obtained under 18 U.S.C. § 3500. Section 3500 does not apply prior to trial, and it generally postpones the disclosure of a statement made by a government witness until after the witness’s direct examination in court. However, as prosecutors will generally need to establish the subject’s credibility, if you participate in the proffer, this is likely to result in your testimony during trial. In this case, the government may need to provide the interview report to your lawyer prior to trial.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.