Conditioning Redress for the Wrongfully Convicted on the Release of Civil Claims

The North Carolina State Bar has released this proposed formal ethics opinion in response to a letter from Professor Jason Huber of Charlotte School of Law.  The proposed opinion addresses the question of whether a prosecutor who has come to believe that someone was wrongfully convicted can condition the initiation of a new proceeding or a dismissal on the convicted person's release of civil claims against relevant law enforcement officials, including prosecutors.  The opinion says, "no," concluding that a "prosecutor may not condition initiation of or cooperation in a proceeding to dismiss a conviction upon the convicted person's release of civil claims against the prosecutor, law enforcement authorities, or other public officials or entities."

Charlotte's Civil Rights Clinic has been seeking ethics opinions from numerous jurisdictions on this issue.  You can find out more, and view a helpful map showing which jurisdictions have addressed the topic, here.

Comments

[John Steele]

I intuitively side with "no," but it seems that legitimate arguments can be made from both sides. (In a case that reasonable people can dispute, is it unethical for a municipality to seek a release?)

As Andy notes in the previous post, Professor Jason Huber filed an ethics complaint against a big law firm because of an alleged incident of advocacy-bigotry by the firm. He may have found a way to marry activist lawyering and legal ethics. An interesting development.

[Andrew Perlman]

I also agree that the answer should be no. Model Rule 3.8(g)-(h) now makes clear that, if a prosecutor genuinely believes that a previously convicted person is actually innocent of the crime, the prosecutor has an obligation to reopen the proceedings/seek a dismissal/take remedial action. That obligation should not be contingent on whether the defendant is willing to grant a release for civil claims against those responsible for the wrongful conviction.

That said, there is an interesting empirical question tucked in here. Imagine for the sake of argument that prosecutors might be less willing to conclude that their Rule 3.8(g)/(h) obligations have been triggered if they fear civil liability or if they fear exposing colleagues to liability. I know that sounds rather sinister, but the reality is that these cases are not always a slam dunk. Perhaps the evidence of innocence is strong, but not overwhelming. In such a case, a prosecutor might be less willing to re-open the case without the option of seeking a release at the same time. If that's right (and I'm engaging in arm chair speculation here), more wrongfully convicted defendants might fail to get the relief they deserve.

This counterargument reminds me a bit of the dissent in Balla v. Gambro. In that case, the Illinois Supreme Court declined to extend whistleblower protection to in-house counsel on the grounds that the Illinois version of Rule 1.6 already required lawyers to disclose the kind of information that whistleblower claims were designed to encourage. The dissent noted that, just because Illinois Rule 1.6 imposed a duty to disclose, allowing lawyers to bring whistleblower claims made it more likely that those lawyers would comply with their ethical obligations under Illinois Rule 1.6. In much the same way, one might argue that, by allowing prosecutors to ask for a release, we're making it more likely that the prosecutors will fulfill their obligations under Rule 3.8. The analogy is not perfect, but I can see a reasonable argument along these lines. That said, I still think the practice should be barred.

On the marrying of activist lawyering and legal ethics, I'm not sure I agree that this is a new development. I think various Rule changes, court opinions involving legal ethics, etc., have drawn the interest of cause lawyers of various kinds. The criminal defense bar, in particular, has been a loud voice in ethics circles for some time. Prosecutors have been too. Perhaps that's not "cause lawyering" in the sense you mean it, John, but I would view it that way.

[Monroe Freedman]

From ULE:

In order to protect police officers or private security guards from civil actions for tortious conduct, some prosecutors will condition a nolle prosequi or other alternative disposition on the defendant’s release of civil claims. In one case, the prosecutor admitted in court that the prosecution had been reinstituted, after having been dropped, solely because the defendant had made a complaint against the arresting police officer:

“[T]hree months later he comes in and makes a formal complaint. So we said, ‘if you are going to play ball like that why shouldn’t we proceed with our case?’ …I had no reason to file until he changed back on his understanding of what we had all agreed on. That is done in many criminal cases.”

On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed the conviction, holding that the prosecutor had committed a “gross abuse of discretion.” Other courts have similarly reversed convictions or have refused to enforce release-dismissal agreements on grounds of public policy.

As explained by Justice Sandra Day O’Connor, the central problem with such agreements is that “public criminal justice interests are explicitly traded against the private financial interest of the individuals involved in the arrest and prosecution.” Justice O’Connor noted further that the risk and expense of a criminal trial “can easily intimidate even an innocent person whose civil and constitutional rights have been violated.” Accordingly, she added, the coercive power of criminal process “may be twisted to serve the end of suppressing complaints against official abuse, to the detriment not only of the victim of such abuse, but also of society as a whole.”

Nevertheless, the Supreme Court held in that case, Town of Newton v. Rumery, that an agreement by an accused to release a civil rights action under 42 U.S.C. § 1983 in exchange for dismissal of criminal charges is not per se invalid. The Court noted, however, that when a prosecutor either brings unwarranted charges or dismisses meritorious charges to protect the interests of other officials, that conduct “properly [has] been recognized as unethical.”

In referring to the ethics of release-dismissal agreements in Rumery, the Supreme Court cited DR 7-105 of the Model Code. This rule forbade every lawyer from presenting or threatening to present criminal charges solely to obtain an advantage in a civil matter. The release-dismissal agreement appears to be the most extreme form of doing that. Unfortunately, there is no parallel to DR 7-105 in either the Model Rules, the ABA Prosecution Function Standards, or the Restatement. However, the National District Attorneys Association says flatly that the prosecutor “should not file charges for the purpose of obtaining from a defendant a release of potential civil claims against victims, witnesses, law enforcement agencies and their personnel, or the prosecutor and his personnel.”

As Justices Stevens and O’Connor recognize in their opinions in Rumery, the release-dismissal agreement implicates the prosecutor in a serious conflict of interest. Justice Stevens points out that the conflict is “obvious…between the prosecutor’s duty to enforce the law and his objective of protecting members of the police department who are accused of unlawful conduct.”

As discussed earlier, conflicts of interest are forbidden not only by MR 1.7(b), but also by the ABA’s Prosecution Function Standards, the Restatement, and the NDAA’s National Prosecution Standards. Further, under both the Prosecution Function Standards and the National Prosecution Standards, the proper course for the prosecutor in cases of conflict of interest is to seek the appointment of a special prosecutor and withdraw from the case. These rules apply in any case in which there is a non-frivolous issue of police misconduct to be resolved, including those that might result in a release-dismissal agreement.

[Charles Olson]

The clinic website shows that a request for an Formal Advisory Opinion is pending in Georgia, which is out-of-date. In April 2012 a request was submitted to the Formal Advisory Board of the State Bar of Georgia for them to prepare an proposed formal advisory opinion on this issue. In October, the Board voted to decline the request for an opinion.

[Thomas A. Nelson]

Hold on a minute. There's is a rule that prohibits threatening a criminal action to get an advantage in a civil case. What difference if the criminal case has already been brought and found to be defective? Isn't it even a greater travesty to use a known, defective criminal prosecution to get an advantage in a civil case?

It follows a fortiori that the criminal case may not be exploited to head off a civil case that may have merit, merit stemming directly from the defectiveness of the criminal case.

Now turn the facts back around and say the civil case came first and a party tries to defend himself by threatening a criminal case he knows to be defective. How does that pass ethical scrutiny?

This problem is not as subjective or arguable as it looks at first glance. It is blatantly unethical to use the criminal case to lever against a civil case. The fact that the criminal case is known to be defective and the civil case may well have merit makes it even more a fortiori.