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Business Crimes BulletinFeaturesLitigationWhite Collar Crime

Attorney Proffers: Practical Considerations and Some Law Too

By Robert J. Anello and Richard F. Albert
March 01, 2020

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.

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