Can a prosecutor condition a plea deal or pretrial intervention on the defendant releasing civil claims and agreeing to hold harmless the police or government?

Plain-English summary

Opinion 714 answers whether a prosecutor may condition a plea or entry into pretrial intervention, in a criminal, quasi-criminal, or motor vehicle matter, on the defendant releasing civil claims and agreeing to hold harmless any person or entity such as the police, the prosecutor, or a governmental entity. The Committee concludes the practice is prohibited.

The analysis rests on RPC 3.4(g), which provides that a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter. The Committee treats that conduct as a form of intimidation and harassment that threatens the integrity of the civil process and is prejudicial to the administration of justice.

The Committee relies on its earlier Opinion 661, which held that a municipal prosecutor may not condition a plea bargain on the defendant's agreement that probable cause existed, that the charges were supported, that no excessive force was used, and that any civil-rights cause of action would be relinquished. As the Committee put it in Opinion 661, the threat of continuation of prosecution is being used to extract an admission that will provide protection against a civil suit, in violation of RPC 3.4(g). It distinguishes Opinion 565, where security guards facing simple-assault charges, with cross-complaints filed against their accusers, could require civil-liability releases as a condition of mutual dismissal; there both sides sought dismissal on equal footing, without the coercion that arises when a prosecutor negotiates a plea with a criminal defendant.

Applying these principles, the Committee confirms that RPC 3.4(g) prohibits a prosecutor from conditioning a plea or pretrial intervention on a defendant's release of civil liability and hold-harmless agreement, in all situations, including where defense counsel initially offers the release.

In practice

The opinion holds that, under RPC 3.4(g) as applied at the time, a prosecutor may not condition entry of a plea or pretrial intervention on the defendant's release of civil liability and hold-harmless agreement protecting the police, the prosecutor, or a governmental entity, and that this prohibition applies even when defense counsel initially offers the release. Per the opinion, the result differs in the Opinion 565 setting of mutual private dismissals on equal footing, where the coercion present in a prosecutor's plea negotiation is absent. Because this opinion predates the most recent five years, verify the current Rules of Professional Conduct before relying on the specific rule text it describes.

Common questions

Q: Can a prosecutor ask a defendant to waive civil claims as part of a plea or PTI deal?

A: The opinion concludes no. RPC 3.4(g) prohibits conditioning a plea or pretrial intervention on the defendant's release of civil liability and hold-harmless agreement, because it uses criminal charges to gain an improper advantage in a civil matter.

Q: Does it matter that the defense lawyer is the one who proposes the civil release?

A: No. The opinion states the prohibition applies in all situations, including when the release and hold-harmless agreement is initially offered by defense counsel.

Q: Is there any situation where a civil-liability release tied to dismissed charges is permitted?

A: The opinion distinguishes Opinion 565, where defendants and their accusers mutually dismissed complaints and cross-complaints on relatively equal footing; there the coercion present in a prosecutor's plea negotiation was absent.

Background and rules framework

The opinion interprets RPC 3.4(g), New Jersey's rule barring a lawyer from presenting, participating in presenting, or threatening to present criminal charges to obtain an improper advantage in a civil matter (within the Model Rule 3.4 family on fairness to opposing parties). The Committee extends that rule to prosecutors who seek a civil advantage by coercing criminal defendants to waive civil causes of action through plea bargains, building on Opinions 661 and 565.

Citations and references

Rules of Professional Conduct:

• MR 3.4 / NJ RPC 3.4(g) (no presenting or threatening criminal charges to gain an improper advantage in a civil matter)

Other opinions cited:

• ACPE Opinion 661, 131 N.J.L.J. 170, 1 N.J.L. 740 (May 18, 1992): prosecutor may not condition a plea on relinquishing civil-rights claims
• ACPE Opinion 565, 116 N.J.L.J. 225 (August 15, 1985): mutual civil releases on dismissal of complaints and cross-complaints

See also

• VA LEO 1867: Release-Dismissal Agreements
• VA LEO 1582: Prosecutor's Threatening Civil Letter
• NY State Bar Op. 772: Threatening Charges in a Civil Case

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2008/acp714-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. Spacing and quotation marks dropped by the mirror's text extraction have been restored; the linked official source controls.

194 N.J.L.J. 451

October 27, 2008

17 N.J.L. 2084

October 27, 2008

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

OPINION 714

Conditioning Entry of a Plea or Entry Into Pretrial Intervention on Defendant's Release From Civil Liability and Hold-Harmless Agreement

Inquirer asked whether a prosecutor may, consistent with the Rules of Professional Conduct and prior Opinions of this Committee, condition entry of a plea or entry into pretrial intervention in a criminal, quasi-criminal, or motor vehicle matter on the defendant's release from civil liability and agreement to hold harmless any person or entity such as the police, the prosecutor, or a governmental entity.

Rule of Professional Conduct 3.4(g) provides that a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter. Threatening to or presenting criminal charges for this purpose is a form of intimidation and harassment that threatens the integrity of the civil process and is prejudicial to the administration of justice.

The Committee has previously decided that this Rule not only prohibits a lawyer handling a civil case from threatening to present criminal charges but also extends to conduct by prosecutors who seek an advantage in a potential civil case by coercing criminal defendants to waive civil causes of action in connection with plea bargains. Advisory Committee on Professional Ethics Opinion 661, 131 N.J.L.J. 170, 1 N.J.L. 740 (May 18, 1992). In Opinion 661, the Committee found that a municipal prosecutor may not condition a plea bargain on an agreement by the defendant that probable cause to arrest existed, that the charges filed were supported by probable cause, that no excessive force was used in the course of the arrest, and that any cause of action for violation of civil rights would be relinquished. Ibid. While the focus of the Opinion was on the general responsibility of a prosecutor to see that justice is done, the Committee also specifically found that RPC 3.4(g) prohibits prosecutors from seeking an advantage in a potential civil action while negotiating a plea bargain with criminal defendants. Ibid. The Committee stated: "In effect, the threat of continuation of prosecution is being used to extract an admission that will provide protection against a civil suit, in violation of RPC 3.4(g)." Ibid.

The facts presented in Opinion 661 differed from those in Opinion 565, 116 N.J.L.J. 225 (August 15, 1985). In Opinion 565, the Committee found that an attorney defending security guards accused of simple assault, where cross-complaints had been filed against the guards' accusers, may require execution of civil liability releases as a condition of mutual dismissal of the complaints and the cross-complaints. Both the complainants and the defendants sought to dismiss their respective charges, the civil claim release accompanied mutual dismissals of claims benefiting both parties, and both parties were on relatively equal footing. The element of intimidation or coercion that can arise when a prosecutor is negotiating a plea bargain with a criminal defendant was not present.

Accordingly, in response to the inquiry, the Committee confirms that RPC 3.4(g) prohibits a prosecutor from conditioning entry of a plea or entry into pretrial intervention in a criminal, quasi-criminal, or motor vehicle matter on the defendant's release from civil liability and agreement to hold harmless any person or entity such as the police, the prosecutor, or a governmental entity. The prohibition applies in all situations, including when the defendant's release from liability and agreement to hold harmless is initially offered by defense counsel.