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 there- fore 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 Protecting Attorney Proffer Notes 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 From Discoveryv. 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 at sentencing, or to have at the ready in for an attorney to have proffer notes
gets to sentencing, at which time it must By randy zelin
the event of a failure of the government’s subpoenaed is an extremely unnerving
be clearly demonstrated to the judge why Irecollection that could ultimately lead to experience, but is also something that one
the client deserves the full benefits that n the course of a federal criminal pros- action to enforce a cooperation agreement. must always be prepared for. Absolutely no
his cooperation should afford him, possibly ecution, clients often seek to cooperate These notes are truly essential for both the attorney would want to face the prospect
resulting in a downward departure. Since it with the government to obtain a better attorney and the client since the government of having to prepare their own client to be
is often months or even years before a cli- sentence. Assuming the characteristics of serves as the sole arbiter as to whether the cross-examined by the very notes that the
ent is sentenced, these notes are needed to a discerning shopper looking to buy a new client is deserving of a cooperation agree- lawyer himself or herself had taken. This
prepare an outline and then cross reference car, the government subsequently requests ment and the beneficiary of the government’s has the potential to be tremendously damag-
with the government to ensure that all par- a test drive with the client to prove his or motion for a downward departure based ing to the case, the psychological state and
ties are in total agreement about what the her worth as a cooperator and to ultimately upon the client’s substantial assistance.
confidence of the client moving forward, and
client contributed. if there is any dispute determine the real value of the information fully aware of this, the lawyer for the of course, the overall attorney-client rela-
from the government, the notes and the being provided.
defendant that the client is cooperating tionship throughout the rest of the process.
outline enable an attorney to go directly to This client audition for the government against will certainly make every effort to with this is mind, the threat of a subpoe-
the judge to accurately show what the cli- takes place in a “proffer session.” The lawyer see those notes in order to impeach the na must never prevent or preclude lawyers
ent had provided. There would be a certain for the client will be present, taking copious client’s testimony at trial through a sub- from properly doing their jobs. Being forced
lack of reliability to only rely on memory in notes in order to have the most accurate poena of the attorney’s proffer notes. No to only rely on the recollections of a proffer
such a situation.
lawyer would ever want his proffer notes session would be woefully inadequate and
memorialization of what was discussed—to
These notes are taken in anticipation of include as further support of the government produced to the defense in order to be used run counter to providing the client with the
litigation in order to prepare for sentencing, sponsored motion for a downward departure
as fodder for cross-examination of the client, best form of representation.
as well as to be able to deal with any prob- as a client imploding on the witness stand The decision in the case United States v.
lems down the road should the government will hardly be viewed by the government Lang, 766 f. Supp. 389 (D. md. 1991) con-
fail to honor the cooperation agreement. in
randy zelin is a partner at Moritt Hock & Hamroff.
as substantial assistance.
cluded that the production of any document