Experienced white-collar defense counsel well know that persuading a prosecutor not to indict a client can be fraught with peril. They must strike a delicate balance between keeping their best cards close to their vest and providing the prosecutor with enough information to understand the context surrounding the client’s alleged misdeeds and intentions.
And if, in consultation with the client, defense counsel have determined to make such a presentation to a prosecutor as they explain their client’s version of the facts to the government, it is critical to take extreme care not to lock the client into an account that may continue to evolve as the investigation progresses. Defense counsel should be mindful that in making a presentation to a prosecutor, the attorney’s work product may one day be weaponized against the client.
