Can a prosecutor tell someone that criminal charges will be deferred if they settle a civil claim, like repaying alleged welfare overpayments?

Plain-English summary

A county Department of Social Services asked an assistant district attorney in the welfare-fraud bureau to sign and send letters, drafted by the department, to people suspected of receiving welfare benefits they were not eligible for. The letter said the district attorney's office had "accepted this case for proposed review for criminal prosecution" but offered, "as an alternative to prosecution," that the recipient work out a civil resolution with a fraud investigator, adding that prosecution would be deferred if the matter was resolved and reconsidered if it was not. The committee was asked whether sending such a letter is proper.

The committee concludes the proposed letter does not meet a prosecutor's special responsibilities, but it rests that conclusion on the duty not to advance unwarranted charges rather than on the rule against using criminal process to gain a civil advantage. It notes the letter could be read as a coercive "we won't prosecute if you pay up" demand, implicating DR 7-105(A) (threatening criminal charges solely to gain advantage in a civil matter) and EC 7-21, but it expressly does not reach those provisions. Instead it relies on DR 7-102(A)(1) and (2), which bar advancing an unwarranted claim, and DR 7-103(A), which bars a public prosecutor from instituting charges not supported by probable cause. Quoting EC 7-13, the prosecutor's role is to seek justice, not merely to convict.

The clear import of the letter, the committee finds, is that the signing ADA believes the recipient committed a crime and will be prosecuted absent payment. That is permissible only on a proper foundation. If, after sufficient investigation, the prosecutor has formed an opinion that probable cause exists and the charge is provable, the prosecutor is generally free to seek lawful dispositions short of prosecution, and could write a letter calling on the recipient to pay or explain. If the prosecutor cannot form a probable-cause opinion, or has not investigated enough to form any opinion, the prosecutor may neither charge nor propose a prosecution-alternative disposition. The committee draws on N.Y. State 770 (no agreement to forgo charges in exchange for a payment absent probable cause) and the Court of Appeals' discussion in Cowles v. Brownell.

In practice

The opinion holds that a prosecutor's offer of a civil resolution in lieu of criminal prosecution is governed by DR 7-102(A)(1) and (2) and DR 7-103(A): the prosecutor must, after due investigation, have formed an opinion that probable cause supports a provable charge before proposing such a disposition. The committee treats the specific department-drafted letter as falling short because it conveys a prosecution threat without that established foundation, and it deliberately leaves the DR 7-105(A) / EC 7-21 question (using criminal process to coerce a civil settlement) undecided, resolving the inquiry on the probable-cause ground instead.

Common questions

Q: Can a prosecutor offer to drop or defer charges if a person settles a civil claim?

A: Only with probable cause. The committee concludes a prosecutor may propose a civil resolution as an alternative to prosecution only if, after due investigation, the prosecutor has formed an opinion that there is probable cause to support a provable charge.

Q: What if the prosecutor has not yet investigated the matter?

A: Then the prosecutor may not act. The opinion states that a prosecutor who has not investigated enough to form an opinion one way or the other is not ethically free to charge the person or to propose a prosecution-alternative disposition like the one in the letter.

Q: Did the committee decide whether the letter violated the rule against using criminal charges to gain civil advantage?

A: No. The committee noted the letter could implicate DR 7-105(A) and EC 7-21 but expressly declined to reach them, resting its conclusion instead on the duty not to advance charges unsupported by probable cause under DR 7-102(A) and DR 7-103(A).

Background and rules framework

The opinion interprets DR 7-103(A) (a public prosecutor may not institute charges unsupported by probable cause, the analogue of ABA Model Rule 3.8), DR 7-102(A)(1) and (2) (not advancing an unwarranted claim, related to ABA Model Rule 3.1), and DR 7-105(A) (threatening criminal charges solely to gain a civil advantage, touched on but not reached, in the area ABA Model Rule 4.4 addresses), with EC 7-13 and EC 7-21 on the prosecutor's duty to seek justice.

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor); MR 3.1 (meritorious claims); MR 4.4 (respect for the rights of third persons)
• Former Code DR 7-103(A); DR 7-102(A)(1), (2); DR 7-105(A); EC 7-13, EC 7-21

Cases:

• Cowles v. Brownell, 73 N.Y.2d 382 (1989), agreements trading dismissal of charges for a civil release offend public policy

Other opinions cited:

• N.Y. State 770 (2003): no agreement to forgo prosecution in exchange for payment absent probable cause

See also

• NY State Bar Op. 822: To whom a lawyer must report another lawyer's misconduct
• NY State Bar Op. 1065: Part-time prosecutor's firm suing a separate village

Source

• Landing page: https://nysba.org/ethics-opinion-821/