I left my Atlanta criminal defense law office this morning and drove to the federal building where I met my client for what is called a “proffer” session. Basically, this is the first step in the process by which my client will agree to cooperate with investigators and prosecutors, with the hope that his assistance will lead to no charges or charges with a potentially reduced sentence. A proffer is when the client goes to the prosecutor’s office and answers questions from the prosecutor and investigating agents. My client and I already made this decision for him to cooperate after a lot of discussion. However, while today was just the first step in going down the cooperation road, it made me think more about the decisions the attorney and the client need to make when deciding whether to fight the charges or give in and make the best of a bad situation.
Many people consult a criminal defense attorney after they learn they are under investigation for some possible crime. A few people come to see me because they know they did something that could lead to an investigation, even if the investigators have not yet contacted the person. In these early stages, the key for the criminal defense lawyer is to fully understand what happened. When, early on, the lawyer has a very good grip on the facts, potential crimes, and possible defenses, the attorney is often in a position to do a lot of good for the client. At this early phase, investigators and prosecutors are sometimes just looking into whether they should, or should not, bring charges against a person or company. If the defense lawyer feels he or she can talk the prosecutor out of charges against the client, it is often easier to do so early rather than later. But, this strategy is not always the best course of action, especially if the attorney feels that there is a chance that the client could be convicted if the prosecutor does decide to bring a charge. Going in to see the prosecutor too early can be a signal of weakness. Some situations call for a “wait and see” tactic. No two cases are alike, and the experienced criminal defense lawyer needs to consider what happened and whether this particular prosecutor seems to have the appetite for this particular type of case. Continue reading