Can a prosecutor offer to dismiss criminal charges in exchange for the defendant releasing civil claims against the police?

Plain-English summary

An arresting officer was alleged to have used means during an arrest that might give rise to a civil action against agency personnel. The question was whether the solicitor, as part of plea negotiations, could offer a "release-dismissal agreement," under which one or both charges would be nolle prossed in exchange for the defendant releasing all government persons and entities from claims arising from that conduct.

The committee concluded the solicitor cannot use the criminal process to obtain a favorable result for a third party in a civil action, even if the solicitor has no direct involvement in that civil action. Rule 4.5 of the SCRPC bars a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter. The committee observed that, although the solicitor here did not threaten or bring the charges, the solicitor has sole discretion over whether to proceed with the pending charges, and that discretion carries a Rule 3.8 responsibility to prosecute only charges supported by probable cause and to protect the defendant's basic rights. The committee characterized holding out dismissal of real, pending charges as giving the solicitor even more leverage than a private lawyer who merely threatens to bring charges.

The committee concluded that, while conditioning the dismissal on a waiver of civil redress might not directly violate Rule 4.5, it would violate Rule 8.4(e), which prohibits conduct prejudicial to the administration of justice, because it forces the defendant to weigh the threat of jail against the right to seek civil redress. The committee added that even where the defense instigates such an agreement without any suggestion from the solicitor, the solicitor may not ethically accept the offer.

In practice

Under this opinion, on the facts presented, a solicitor may not offer or accept a release-dismissal agreement that conditions dismissal of criminal charges on the defendant's release of civil claims against the police. The committee grounded that conclusion in Rule 8.4(e) (conduct prejudicial to the administration of justice) and the solicitor's Rule 3.8 charging responsibilities, and stated the prohibition holds even when the defense, not the solicitor, proposes the agreement.

Common questions

Q: Can a South Carolina solicitor dismiss charges in exchange for a defendant dropping civil claims against the police?

A: No. The committee concluded the solicitor cannot use the criminal process to obtain a favorable result for a third party in a civil action, and that conditioning dismissal on a release of civil claims violates Rule 8.4(e).

Q: Does it matter that the solicitor did not threaten or originally bring the charges?

A: The committee found it does not change the result. Because the solicitor has sole discretion over the pending charges, holding out their dismissal gives even greater leverage than a threat to bring charges.

Q: What if the defense proposes the release-dismissal agreement?

A: The committee stated that even where such an agreement is instigated by the defense without any suggestion from the solicitor, the solicitor may not ethically accept the offer.

Background and rules framework

The opinion applies South Carolina Rule 4.5 (a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter), Rule 3.8 (special responsibilities of a prosecutor, including prosecuting only charges supported by probable cause and protecting the defendant's basic rights), and Rule 8.4(e) (conduct prejudicial to the administration of justice). Rule 8.4 corresponds to Model Rule 8.4 and Rule 3.8 to Model Rule 3.8; South Carolina's Rule 4.5 has no current Model Rule counterpart.

Citations and references

Rules of Professional Conduct:

• SC Rule 4.5 (no presenting or threatening criminal charges solely to obtain an advantage in a civil matter; no current Model Rule counterpart)
• MR 3.8 / SC Rule 3.8 (special responsibilities of a prosecutor)
• MR 8.4(e) / SC Rule 8.4(e) (conduct prejudicial to the administration of justice)

See also

• SC Bar Ethics Op. 03-11: A prosecutor's duty to disclose an officer's false testimony
• SC Bar Ethics Op. 04-07: Using a sham consultation to disqualify counsel

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-17/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 05-17

RULES 3.8, 4.5 and 8.4(e)

Facts
A law enforcement agency arrested and charged an individual. During the course of the individual’s arrest the arresting officer is alleged to have used means which may give rise to a civil action against agency personnel and others.

Question
Can the solicitor, as part of plea negotiations, offer the use of a “release-dismissal agreement” whereby, in exchange for the nolle prosequi of one or both charges, the defendant would release all government persons and entities from all causes of action, claims, and demands potentially arising from the questionable means?

Summary
The solicitor cannot use the criminal process to obtain a favorable result for a third party in a civil action (potential or actual) even if the solicitor has no direct involvement in the civil action.

Opinion
Rule 4.5, SCRPC, states that “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” In the present facts, the solicitor did not threaten to bring criminal charges, and the solicitor did not actually bring the criminal charges. However, the solicitor does have the sole discretion to proceed or not to proceed with the prosecution of the pending criminal charges. The exercise of that discretion includes the responsibility to only prosecute charges supported by probable cause and to protect the basic rights of the defendant. Rule 3.8, SCRPC. This gives the solicitor even more “bargaining” power than an attorney who can simply threaten to present criminal charges. The criminal charge here is not a threat; it is a reality. Holding the “carrot” of dismissing pending charges is much greater than the threat to bring charges.

The solicitor is in a unique position to use criminal charges to gain an advantage for a third party. While conditioning the dismissal upon the waiver of civil redress may not directly violate Rule 4.5, it would violate Rule 8.4(e), which prohibits conduct that is prejudicial to the administration of justice. The solicitor has the power to summarily dismiss one or both charges against the defendant. This would require the defendant to weigh the threat of jail against his right to seek civil redress for the alleged improper conduct of the police.

Even where such an agreement is instigated by the defense without suggestion from the solicitor, the solicitor may not ethically accept the offer.