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Over the past few years, many of the initial meetings I have had with white-collar defense attorneys have followed a pattern. After about 20 minutes, during which I outline some of the evidence, the attorney asks me, “Do you know what job I used to have?” He then gives me a sketch of his biography and politely explains that when he was a prosecutor, a case like this one surely would have been declined. The lawyer then adds that he is a close friend of some distant superior of mine. I leave the discussion able to write the Martindale-Hubbell entry of the defense attorney, impressed with the attorney’s affability and wondering whether anyone was ever indicted for a white-collar offense in the good old days. I also leave the discussion with precisely the same assessment of the case and the same desire to seek an indictment. This is a shame, because in many white-collar investigations, before an indictment has been returned, defense lawyers can affect how a prosecutor views, and treats, their client. I will outline one prosecutor’s take on why this opportunity exists and how defense counsel can help their clients by offering their version of the client’s case to the government. I will discuss attorney proffers, which are conversations between the prosecutor and the defense attorney, without the client present, and client proffers, in which the client directly answers the prosecutor’s questions. The very nature of white-collar crime gives defense attorneys an opportunity to influence charging decisions. Much more than in other types of prosecutions, the key question in white-collar cases is not so much what someone has done but what the individual was thinking when he did it. In other words, what was his mental state? For example, there might be little dispute that a tax return was false or that someone transferred money from one account to another in seeming violation of a regulatory statute. But a defense attorney may still argue that her client thought that his tax return was correct or that he relied, in good faith, on the advice of his lawyer before transferring the money. If the defense attorney is correct on the mental-state issue, her client has committed no crime. Coincidentally, evidence of mental state is often difficult for the government to obtain. So the defense attorney has this important evidence, and the prosecutor wants it before making a charging decision. If the prosecutor has not made up his mind and the evidence is either exculpatory or mitigating, the defense lawyer has an opportunity to use the evidence to her client’s advantage. Before sharing any information with the government in an attorney proffer, most defense counsel want to determine whether the prosecutor is open to persuasion. Typically, attorneys ask me, “Is my client a target or a subject?” Unfortunately, many defense lawyers treat the two terms as nearly identical. They are not. A target is a putative defendant who is likely to be indicted. The term “subject” is less ominous and is probably the most misunderstood term in white-collar practice. It is defined broadly as a person whose conduct is within the scope of a grand jury’s investigation. This definition covers someone who may become a target but also someone who may have technically violated the law yet whom few sane prosecutors would try to indict. A good attorney proffer When I have told defense attorneys that, yes, their client is a subject, some have blanched and shut off any meaningful dialogue. That is a mistake. Attorney proffers are potentially the most useful when the client is a subject who is on the borderline of being charged. What makes for a successful attorney proffer? The first component is timing. Large investigations may include many law enforcement agents and prosecutors, sometimes from different offices or agencies. Once all of these people have invested a lot of time and resources and concluded that someone is culpable, it is hard to persuade them to change course. It is important, therefore, for a lawyer to create a favorable first impression of her client. If the client decides to cooperate with the government, an early meeting often is critical. The government can use the information gleaned in the meeting in applications for search warrants, consensual recordings and confrontational interviews. These opportunities evaporate as an investigation becomes well known and stale. Content and believability The other characteristics of a successful attorney proffer are, not surprisingly, content and believability. The white-collar prosecutor probably knows or will find out soon enough what the client did. What he often does not know, or is educable about, is the client’s mental state. In an effective proffer, an attorney will point out why her client acted in good faith or did not have the requisite criminal intent. For the proffer to be credible, the prosecutor will want substantiation (even if it is not admissible). Examples might include statements of the client, contemporaneous with his actions, that suggest his innocence, evidence that an innocent explanation is in character or evidence that an innocent explanation is consistent with the client’s knowledge-such as that the client did not have access to enough information to know that a document was fraudulent. A lawyer also may show that the conduct was governed by some other credible driving force. One example, which I have encountered more than once, is when a gift to a government official was not a bribe but part of a long-standing friendship or secret romantic relationship and thus was unrelated to any government action. Although proffers can be quite helpful, when an attorney proffer is not credible, the client’s position can be hurt. Unfortunately, I have sat through the presentation of many strange proffers, including one in which the attorney’s version of events was physically impossible. (My colleague and I actually performed a re-enactment.) A ridiculous proffer reduces the credibility of the attorney, makes the government think the client is a liar and puts the attorney in the awkward position of having to reverse herself if the client later wants to plead guilty or cooperate. It is far better for a lawyer to tell the prosecutor that she is not ready to give an attorney proffer than to give a proffer that is not credible. Sometimes, after an attorney proffer, the prosecutor will want to schedule a client proffer, also called a debriefing. Prosecutors almost always insist on a client proffer when the client wishes to reduce the sentence by cooperating or when the case involves national security. In those situations, the client’s credibility is particularly important, either because the client is a potential trial witness or in order to assess any harm to national security. If the prosecutor is considering what defense lawyers call a “noncriminal resolution,” the prosecutor may want to meet the client to assure herself, her superiors and the law enforcement agents on the case that a decision not to prosecute is appropriate. Whatever the reason for the proffer, the prosecutor and the case agents often will question the client in great detail, in a manner that can range from an amicable information exchange to a testy cross-examination. Debriefings are fraught with more risk for the client than an attorney proffer, but they also offer greater potential for moving the prosecutor in the client’s direction. The risk arises because almost all debriefings are conducted under what is termed “Queen for a Day” rules. This means the government agrees that, in a trial, it will not use the client’s words directly against him in its case in chief, but may use the proffer for other purposes, such as to obtain other evidence or to cross-examine the client. The potential upside of a debriefing is that it helps the prosecutor see the client not just as a name on a bunch of Federal Bureau of Investigation reports but as a three-dimensional person. It is, in my experience, often easier to believe an explanation that comes directly from someone over an explanation that is filtered through his lawyer. And a lawyer may want the prosecutor and the agents at least to meet the person whom they may try to imprison. The hallmarks of successful debriefings are pretty much the same as those for attorney proffers, but the stakes are higher. If an attorney proffer is not believable or does not go well, any damage may be reversible. The attorney may come back and, often sheepishly, offer a completely different version of events. This flip-flop may or may not work, but at least there has been no direct false statement from the client to the government. In contrast, a fictitious client proffer may harden the government’s position and, worse yet, cause the client to be prosecuted for making false statements or possibly for obstruction of justice. To avoid this calamity, the defense attorney has to prepare her client well for a debriefing. Flunking Advocacy 101 To many readers of this article, what I have said may seem fairly obvious. Of course white-collar defense lawyers should talk to the prosecutor before an indictment. And of course they should persuasively argue that their client did not have the intent to commit a crime. That’s Advocacy 101. Nevertheless, whether it is out of a distrust of prosecutors or a tactical choice, some defense counsel do not engage in the type of dialogue I have outlined or, if they do, they wait until it is too late. I do not expect or think that a defense lawyer will simply tell me everything I want to know about a case. I am, after all, the person who may try to deprive his client of liberty. But in many cases, a lawyer has persuaded me to offer a plea to a lesser offense or not to charge her client at all. That is pretty effective advocacy. Howard Sklamberg is an assistant U.S. attorney in the District of Columbia in the fraud and public corruption section. He previously worked as a trial attorney in the Department of Justice’s public integrity section. The views expressed are his own.

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