Manatt Partners Randy Grossman and Richard Hartunian and Associates Misa Eiritz and Russell Potter wrote an article for California Litigation discussing the risks and rewards of attorney proffers, using the recent high-profile case of U.S. v. Menendez to demonstrate the limits of protection of proffer communications.
In the article, the authors provided background on the Menendez case, detailing how prosecutors secured a guilty verdict by introducing evidence from a preindictment presentation by the defense counsel. While the defense sought protection of these proffer communications under Federal Rules of Evidence, Rule 408, the circumstances and nature of the materials did not fall under the rule’s limited protections, thus allowing the prosecution to cite the content of the presentation as evidence against Menendez.
The authors went on to review related cases involving the admissibility of attorney statements in other litigation contexts, offering guidance on precautions attorneys can take when talking with the government. “As these cases demonstrate, attorney proffers or other statements made during other critical proceedings within a case can easily find their way into the matter at hand in ways that are harmful to a client,” they wrote. “Defense lawyers must always remember that they are their clients’ agents and can easily bind them, with the Federal Rules of Evidence offering only limited protections (and exceptions) that can be a trap for the unwary.”
Read the full California Litigation article here.