Randy Zelin, New York Law Journal
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 representation.
The decision in the case United States v. Lang, 766 F. Supp. 389 (D. Md. 1991) concluded that the production of any document hinges on its admissibility. The bottom line here is that privilege trumps admissibility. Taken correctly, an attorney’s notes are truly attorney work product and are therefore to be shielded from disclosure.
There are specific ways in which a lawyer can actually maximize the odds that his or her notes will be viewed by the court as an “attorney work product” and therefore will not be discoverable. The work product doctrine shields “documents and tangible things” that have been prepared by an attorney in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). An attorney’s work product can be classified as either factual or opinion work product. See United States v. Dessange, 2000 U.S. Dist. LEXIS 3734 (S.D.N.Y. 2000). An attorney’s opinion work product—his mental impressions and legal strategies—is afforded the highest measure of protection from discovery. Dessange, id., at *3 (citing United States v. Aldman, 134 F. 3d 1194 (2d Cir. 1998)). It is important to diligently follow some specific methods to get the desired effect. In order to ensure that the information remains privileged, the lawyer’s proffer notes cannot be a mere transcription of what was discussed. The lawyer’s notes must strongly reflect the lawyer’s mental impressions, thoughts, opinions, conclusions and strategies for the client’s cooperation and sentencing preparation—what the lawyer prepares in anticipation of litigation—the sentencing phase or to litigate the enforcement of a cooperation agreement.
An attorney effectively protects his proffer notes from the prying eyes of the defense by ensuring that his notes are more than just stenography of what his client told the government during the proffer session, but also reflect his impressions, beliefs, legal analysis, strategies, impressions and conclusions in order to prepare for his client’s sentencing or for a motion to enforce his client’s cooperation agreement. United States v. Arias, 373 F. Supp. 2d 311 (S.D.N.Y. 2005). Underlining, making arrows and circling are also equally reflective of an attorney’s mental impressions and though processes. United States v. Watts, 934 F. Supp. 2d 451 (E.D.N.Y. 2013).
As mentioned, these written notes become increasingly crucial the closer one gets to sentencing, at which time it must be clearly demonstrated to the judge why the client deserves the full benefits that his cooperation should afford him, possibly resulting in a downward departure. Since it is often months or even years before a client is sentenced, these notes are needed to prepare an outline and then cross reference with the government to ensure that all parties are in total agreement about what the client contributed. If there is any dispute from the government, the notes and the outline enable an attorney to go directly to the judge to accurately show what the client had provided. There would be a certain lack of reliability to only rely on memory in such a situation.
These notes are taken in anticipation of litigation in order to prepare for sentencing, as well as to be able to deal with any problems down the road should the government fail to honor the cooperation agreement. In such a situation, the lawyer must be free to effectively do his or her job without the possibility of prying eyes appearing somewhere during the process. A lawyer who is concerned about his or her notes being discoverable will simply not write things down, something that is clearly not in best interest of the client or the justice system.
As a result, the best and most effective way to shield the notes from the discovery process is to solidly make them an attorney work product. Consequently, the notes need to rise above transcription. To avoid acting merely as a stenographer, the attorney must make sure to include plenty of their own mental impressions, professional observations, thoughts and strategic plans. Actively increase and maximize personal observations and written thoughts—the more that can be included, the better it is. Limiting the writing to only a few of these mental impressions will not protect the information and can possibly result in the judge issuing a redacted version of the proffer notes to the other attorney.
The bottom line is that proffer notes are far too valuable to take any risks with. During this session, the client must be completely open with the government and share everything about their past transgressions even if there is no connection to the case at hand, absolutely anything could be considered fair game. This can include admissions of illegal drug use, extramarital affairs, and many more uncomfortable personal faults.
The notes can be a veritable gold mine for the other attorney, not only for use in a destructive cross examination that impeaches a client, but also in the far more effective constructive cross examination, which devastatingly turns your own client into their witness.
The work product privilege protects what the lawyer prepares in anticipation of litigation. A lawyer has the right to practice without intrusion—that is precisely why attorney-client and work product privileges exist. Rarely are the stakes ever higher than when a client is cooperating in a criminal case in order to reduce his or her sentencing exposure.
A good attorney for a cooperating witness will take detailed and copious notes to be sure that the full breadth and scope of the client’s cooperation will be thoroughly known to the sentencing judge. This will also serve as a memorialization of what was discussed in the case and can prove to be a powerful tool if there is a disagreement down the road with the government.
A proffer session is a critical step on the path to a cooperation agreement, which should lead to the critical step of a government sponsored motion for a downward departure, which ultimately is the most critical step in a successful outcome for the client at sentencing. Allowing proffer notes to fall into the hands of the defense jeopardizes this highly sensitive process. A diligent lawyer needs to ensure that they remain privileged at all costs and should always make these notes truly their own product. Done right, this effectively transforms this information into a detailed road map that charts the best defense and outcome for the client. As a result, the lawyer cannot simply record what the client says—the notes must reflect the lawyer’s thoughts and mental impressions—and that’s ultimately what sets it apart as the work product and keeps it privileged. In order to do this, the lawyer must approach this process as a lawyer and not simply a stenographer. It could spell all the difference between the client leaving with you through the back door of the courtroom, as opposed to with the marshals through the side door.