Advisory Opinion: 1135

Year Issued: 1987

RPC(s): RPC 3.8

Subject: Prosecutor seeking release from civil liability in exchange for dismissal of criminal charge

By unanimous vote, the Committee adopted the enclosed Informal Opinion essentially stating that nothing the Rules of Professional Conduct prohibits a prosecutor from seeking a release from civil liability from a defendant in exchange for dismissal of charges, provided that the prosecutor has a well grounded belief that the charges are supported by probable cause, that the defendant is informed of the implications of the agreement, and that the release agreement would be enforceable under the decision in Newton v. Rumery, 107 S.Ct. 1187 (1987).

INFORMAL OPINION #1135

RELEASE AGREEMENTS SOUGHT BY PROSECUTORS

IN EXCHANGE FOR DISMISSAL OF CHARGES

QUESTION:

May a prosecutor offer to dismiss criminal charges in exchange for the defendants agreement to release all civil claims against the government entity or officials?

ANSWER:

Nothing in the Rules of Professional Conduct prohibits a prosecutor from seeking a release from civil liability from a defendant in exchange for dismissal of charges, provided that the prosecutor has a well grounded belief that the charges are supported by probable cause, that the defendant is informed of the implications of the agreement, and that the release agreement would be enforceable under the decision in Newton v. Rumery, 107

S.Ct. 1187 (1987).

DISCUSSION:

An inquiry has been made by a prosecutor who represents municipalities regarding ethical problems faced by prosecutors when proposing to dismiss criminal charges in exchange for execution by the defendant of a release of civil claims against the government entity or officials. Rule 3.8 of the Rules of Professional Conduct provides in part:

The prosecutor in a criminal case shall:

(a) Retrain from prosecuting a charge that the prosecutor knows is not supported by probable cause...
Therefore, if a prosecutor concludes (or reasonably should conclude) that the charges against a defendant are not supported by probable cause, the prosecutor has an ethical obligation to dismiss the charges and, in those circumstances, it would be unethical for the prosecutor to condition dismissal on execution of a release of civil liability. A lawyer cannot impose conditions upon an act that the lawyer is required unconditionally to perform under the Rules of Professional Conduct.

If, on the other hand, the prosecutor has a well founded belief that the charges are supported by probable cause, then it would not be per se unethical to condition dismissal upon execution of a release.

The United States Supreme Court in Newton v. Rumery, 107 S.Ct. 1187 (1987), held that such a plea bargain offer is not per se violative of a criminal defendants s rights, and that such a plea bargain, once made, is enforceable where there is no evidence of prosecutorial misconduct, if it was the product of an informed and voluntary decision on the part of the defendant. Given the potential for abuse in such release agreements, the Committee is of the opinion that prosecutors should use them only when the prosecutor has a well grounded belief that the charges are supported by probable cause, and also a well founded belief that the release would be legally enforceable under the criteria set out in the Rumery decision.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.