Page 7 - White-Collar Crime

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White-Collar Crime | Monday, July 7, 2014 | S7

such a situation, the lawyer must be free gation. A lawyer has the right to practice

to effectively do his or her job without the without intrusion—that is precisely why
possibility of prying eyes appearing some- attorney-client and work product privileges
where during the process. A lawyer who exist. rarely are the stakes ever higher than
is concerned about his or her notes being when a client is cooperating in a criminal
discoverable will simply not write things case in order to reduce his or her sentenc-
down, something that is clearly not in best ing exposure.
interest of the client or the justice system.
A good attorney for a cooperating wit-
As a result, the best and most effective ness will take detailed and copious notes
way to shield the notes from the discovery to be sure that the full breadth and scope of

process is to solidly make them an attorney the client’s cooperation will be thoroughly
work product. Consequently, the notes need known to the sentencing judge. This will
to rise above transcription. To avoid acting also serve as a memorialization of what was
merely as a stenographer, the attorney must discussed in the case and can prove to be
make sure to include plenty of their own a powerful tool if there is a disagreement
mental impressions, professional observa- down the road with the government.
tions, thoughts and strategic plans. Actively A proffer session is a critical step on the
increase and maximize personal observa- path to a cooperation agreement, which
tions and written thoughts—the more that should lead to the critical step of a gov-

can be included, the better it is. Limiting ernment sponsored motion for a downward
the writing to only a few of these mental departure, which ultimately is the most
impressions will not protect the information critical step in a successful outcome for
and can possibly result in the judge issuing the client at sentencing. Allowing proffer
a redacted version of the proffer notes to notes to fall into the hands of the defense
the other attorney.
jeopardizes this highly sensitive process.
The bottom line is that proffer notes are A diligent lawyer needs to ensure that they
far too valuable to take any risks with. Dur- remain privileged at all costs and should

ing this session, the client must be com- always make these notes truly their own
pletely open with the government and share product. Done right, this effectively trans-
everything about their past transgressions forms this information into a detailed road
even if there is no connection to the case at map that charts the best defense and out-
hand, absolutely anything could be consid- come for the client. As a result, the law-
ered fair game. This can include admissions yer cannot simply record what the client
of illegal drug use, extramarital affairs, and says—the notes must reflect the lawyer’s
many more uncomfortable personal faults.
thoughts and mental impressions—and
The notes can be a veritable gold mine that’s ultimately what sets it apart as the

for the other attorney, not only for use work product and keeps it privileged. in
in a destructive cross examination that order to do this, the lawyer must approach
impeaches a client, but also in the far more this process as a lawyer and not simply a
effective constructive cross examination, stenographer. it could spell all the differ-
which devastatingly turns your own client ence between the client leaving with you
into their witness.
through the back door of the courtroom, as
The work product privilege protects what opposed to with the marshals through the
the lawyer prepares in anticipation of liti-
side door.

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