Could a Colorado prosecutor condition dismissal or a plea concession on the defendant releasing civil claims against the government or police?

Plain-English summary

Opinion 62 treated the prosecutor's duty as seeking justice rather than merely obtaining convictions. It concluded that using criminal process to coerce abandonment of a potentially valid civil claim subverted both the criminal and civil systems. A prosecutor therefore could not follow a blanket release-dismissal policy or bargain for release of claims unrelated to the criminal episode, and a city attorney could not improperly pressure the prosecutor to do so.

After Town of Newton v. Rumery held that some release-dismissal agreements could be enforceable, the Committee identified a narrow exception. The criminal charges had to be well founded and arise from the same transaction, the prosecutor could not know of a serious civil-rights violation, the defendant had to make an informed and voluntary decision, the agreement had to receive judicial approval, and it had to serve the public interest.

The prosecutor had to assess voluntariness and information case by case, considering access to counsel, meaningful participation in negotiations, age, education, mental state, custody, drugs, and whether a cooling-off period was appropriate. The 1995 addendum identified Rule 4.5 and former Rule 8.4(g) as corresponding Rules of Professional Conduct.

Currency note

This opinion was issued in 1982, revised in 1988, and received a 1995 addendum, all before Colorado's 2008 revisions to the Rules of Professional Conduct. Later constitutional law, prosecutorial standards, civil-rights law, statutes, and rule amendments may have changed the analysis. Treat this page as historical context and verify current authority before relying on a release-dismissal proposal.

Common questions

Q: Could a prosecutor have a blanket policy requiring civil releases?

A: No. The opinion concluded that blanket or coercive release-dismissal requirements were unethical.

Q: Could a release cover an unrelated civil claim?

A: No, under the opinion's exception. The reciprocal promises had to concern the same transaction as the criminal episode.

Q: What made an agreement voluntary and informed?

A: The opinion considered counsel access, meaningful negotiation, age, education, mental condition, custody, drug influence, and possible time to reconsider.

Q: Was court approval required?

A: Yes. Judicial approval was one of the six conditions the opinion required for the narrow exception.

Background and rules framework

The opinion was written under former rules barring threats of criminal charges to gain civil advantage and conduct prejudicial to justice. Its 1995 addendum identified Colorado RPC 4.5 and former Rule 8.4(g), while the analysis also relied on prosecutorial standards requiring restraint and pursuit of justice.

Citations and references

Rules of Professional Conduct:

• Former Colo. RPC 4.5 (threatening prosecution)
• Former Colo. RPC 8.4(g) (accepted standards of legal ethics)

Cases:

• Town of Newton v. Rumery, 480 U.S. 386 (1987), enforceability of release-dismissal agreements

Other opinions cited:

• CBA Formal Opinion 56: use of criminal process in civil disputes
• ABA Standards for Criminal Justice: prosecutor's duty to seek justice and charging discretion

See also

• California Formal Op. 1989-106: Release-Dismissal Agreements
• North Carolina 2013 Formal Op. 1: Prosecutor's Release-Dismissal Offer
• Ohio Ethics Op. 1994-010: Dismissal for Civil Release

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: Colorado Formal Ethics Opinion 62