In their latest Law 360 article, Jillian Berman, John Siffert and Ben Schwartz analyze proffer agreements — frequently used when a witness agrees to a voluntary interview with a federal prosecutor.  Once referred to as a “Queen for a Day” agreement, the practice of proffer agreements is evolving with the times.  This article considers from a defense perspective the current uses and potential risks of such agreements.

When conducting an interview in a criminal investigation, many U.S. Attorney’s Offices will offer a proffer agreement — a short contract typically between the prosecuting office and the individual who has agreed to sit voluntarily for an interview.  The agreement may vary among different DOJ offices, but the primary benefit of a proffer agreement to the interviewee is that it usually grants immunity from direct use of proffered information in a future prosecution for the conduct under investigation.  However, proffer agreements used by many U.S. Attorney’s Offices lack protections if DOJ shares the information obtained during the interview with parties who are not signatories to the agreement, such as other government agencies or foreign authorities conducting a parallel investigation. This could leave the interviewee exposed.

In this Law360 article the authors highlight this important but often overlooked risk to entering a proffer agreement.  Particularly in light of the increasing prevalence of overlapping investigations by state, federal, and foreign law enforcement entities, the authors encourage counsel to be attentive to this issue in ​evaluating whether entering a proffer agreement, or proffering at all, is in the client’s best interest. The authors also offer some practical suggestions.