Can a prosecutor make the decision to prosecute conditional on the complaining witness agreeing not to civilly compromise the case, and can the prosecutor instead suggest a civil compromise?

Plain-English summary

ORS 135.703 to 135.709 let a victim enter into a civil compromise in certain cases at any time before trial. A district attorney who does not want to begin a criminal proceeding only to see it civilly compromised asks two questions: whether the decision to prosecute may be conditioned on the complaining witness agreeing not to civilly compromise, and whether the district attorney may instead suggest a civil compromise.

The opinion answers no to the first. Oregon RPC 8.4(a)(4) makes it professional misconduct to engage in conduct prejudicial to the administration of justice, and conditioning the prosecution decision on a witness's promise to forgo a remedy the statute grants violates that rule. The opinion cites In re Boothe (improper to seek an agreement that a person not testify) and In re Wehmeyer as illustrations of the kind of interference the rule reaches.

The opinion answers yes to the second. The district attorney may suggest a civil compromise and may ask a complainant whether an out-of-court compromise appears likely, so that prosecution may not be necessary or appropriate. Because the complainant is unrepresented in this exchange, the opinion points to Oregon RPC 4.3: the lawyer must not state or imply that the lawyer is disinterested, must correct any misunderstanding of the lawyer's role, and must not give legal advice (other than to secure counsel) where the unrepresented person's interests conflict with the client's or the lawyer's. In re Bauer is cited for the point that the rule is not violated where no legal advice is given.

In practice

The opinion holds that, under the Oregon rules as they stood at the time of the opinion, a prosecutor's coercive condition (prosecute only if you promise not to civilly compromise) is prejudicial to the administration of justice under RPC 8.4(a)(4), while merely suggesting or inquiring about a civil compromise is permitted. The analysis turns on the difference between exacting a promise to give up a statutory remedy and offering or asking about the compromise option. When the prosecutor deals with the unrepresented complainant, RPC 4.3 governs the contact. Verify the current text of Oregon RPC 8.4 and 4.3 and ORS 135.703 to 135.709 before relying on any specific point.

Common questions

Q: Can a DA tell a victim the case will only be prosecuted if the victim promises not to civilly compromise it?

A: No. The opinion concludes that conditioning the prosecution decision on the complaining witness's commitment not to enter a civil compromise violates Oregon RPC 8.4(a)(4) as conduct prejudicial to the administration of justice.

Q: Can a prosecutor suggest that the parties pursue a civil compromise instead?

A: Yes. The opinion concludes a district attorney may suggest a civil compromise and may ask a complainant whether an out-of-court compromise appears likely, so prosecution may turn out to be unnecessary.

Q: What rule governs the prosecutor's contact with the unrepresented complainant?

A: Oregon RPC 4.3. The opinion notes the prosecutor must not imply disinterestedness, must correct any misunderstanding of the prosecutor's role, and must not give the unrepresented person legal advice other than to secure counsel where interests conflict.

Background and rules framework

The opinion interprets Oregon RPC 8.4(a)(4) (conduct prejudicial to the administration of justice), corresponding to Model Rule 8.4(d), and Oregon RPC 4.3 (dealing with an unrepresented person), corresponding to Model Rule 4.3, against the civil-compromise statutes at ORS 135.703 to 135.709.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 8.4(a)(4) / Model Rule 8.4(d) (conduct prejudicial to the administration of justice)
• Oregon RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)

Statutes:

• ORS 135.703 to 135.709 (civil compromise of certain crimes)

Cases:

• In re Haws, 310 Or 741, 801 P2d 818 (1990)
• In re Boothe, 303 Or 643, 740 P2d 785 (1987)
• In re Wehmeyer, 14 DB Rptr 188 (2000)
• In re Jeffery, 321 Or 360, 898 P2d 752 (1995)
• In re Bauer, 283 Or 55, 581 P2d 511 (1978)

Other opinions cited:

• Washington Advisory Op. No. 1020 (1986) (suggesting civil compromise)

See also

• ABA Formal Op. 469: Prosecutors and Debt Collection Companies
• Alabama Ethics Op. 1991-44: District Attorney's Office May Prosecute a Criminal Defendant

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-89.pdf