Protecting Attorney Proffer Notes From Discovery

In the course of a federal criminal prosecution, clients often seek to cooperate with the government to obtain a better sentence. Assuming the characteristics of a discerning shopper looking to buy a new car, the government subsequently requests a test drive with the client to prove his or her worth as a cooperator and to ultimately determine the real value of the information being provided.

This client audition for the government takes place in a "proffer session." The lawyer for the client will be present, taking copious notes in order to have the most accurate memorialization of what was discussed—to include as further support of the government sponsored motion for a downward departure at sentencing, or to have at the ready in the event of a failure of the government's recollection that could ultimately lead to action to enforce a cooperation agreement. These notes are truly essential for both the attorney and the client since the government serves as the sole arbiter as to whether the client is deserving of a cooperation agreement and the beneficiary of the government's motion for a downward departure based upon the client's substantial assistance.

Fully aware of this, the lawyer for the defendant that the client is cooperating against will certainly make every effort to see those notes in order to impeach the client's testimony at trial through a subpoena of the attorney's proffer notes. No lawyer would ever want his proffer notes produced to the defense in order to be used as fodder for cross-examination of the client, as a client imploding on the witness stand will hardly be viewed by the government as substantial assistance.

For an attorney to have proffer notes subpoenaed is an extremely unnerving experience, but is also something that one must always be prepared for. Absolutely no attorney would want to face the prospect of having to prepare their own client to be cross-examined by the very notes that the lawyer himself or herself had taken. This has the potential to be tremendously damaging to the case, the psychological state and confidence of the client moving forward, and of course, the overall attorney-client relationship throughout the rest of the process.

With this is mind, the threat of a subpoena must never prevent or preclude lawyers from properly doing their jobs. Being forced to only rely on the recollections of a proffer session would be woefully inadequate and run counter to providing the client with the best form of...