Can a Virginia prosecutor dismiss criminal charges in exchange for the defendant releasing civil claims arising from the arrest or prosecution?

Plain-English summary

A release-dismissal agreement is an agreement between a prosecutor and a criminal defendant to dismiss charges in return for a release of some entity from civil liability. The opinion asks whether such agreements are ethical and answers by drawing limits from two rules.

The committee starts from Town of Newton v. Rumery, 480 U.S. 286 (1987), where a plurality of the U.S. Supreme Court upheld a particular release-dismissal agreement and declined to impose a per se ban, while recognizing such agreements may be abused. The opinion adopts the same posture: no per se ban, but intense scrutiny. It then anchors the ethical limits in Rule 3.8(a) and Rule 3.4(i). Under Rule 3.8(a), a prosecutor may not file or maintain a charge she knows is not supported by probable cause; so if a charge is not (or is no longer) supported by probable cause, she must dismiss it and may not condition that dismissal on a release of civil liability. Maintaining such a charge to negotiate a release would itself violate Rule 3.8(a). Within those limits, the opinion recognizes that a prosecutor has broad discretion over charging, plea bargaining, and dismissal.

Under Rule 3.4(i), a prosecutor may not present criminal charges solely to obtain an advantage in a civil matter; charges initiated or trumped up to coerce a release would violate that rule. But where probable cause supports the charges and there is no other evidence they were brought or maintained solely to coerce a civil settlement, negotiating a release-dismissal agreement does not violate Rule 3.4(i). The opinion adds that a prosecutor should not require release-dismissal agreements as a matter of course when dismissing charges, and should not seek a release of civil claims unrelated to the criminal charges at issue.

In practice

Under the Virginia rules as they stood when the opinion issued, the opinion holds that release-dismissal agreements are not per se unethical but are subject to two lines. Rule 3.8(a) bars maintaining a charge the prosecutor knows lacks probable cause; once probable cause is gone the charge must be dismissed without conditioning dismissal on a release. Rule 3.4(i) bars bringing or maintaining charges solely to gain a civil advantage, so charges initiated or trumped up to coerce a release, or a demanded release of unrelated civil claims, fall outside what the opinion permits.

Common questions

Q: Is it ethical for a Virginia prosecutor to use a release-dismissal agreement?

A: The opinion concludes there is no per se ban, following Town of Newton v. Rumery, but states that any such agreement is subject to intense legal and ethical scrutiny.

Q: What does Rule 3.8(a) require here?

A: A prosecutor may not file or maintain a charge she knows lacks probable cause. The opinion holds that if a charge is not, or is no longer, supported by probable cause, the prosecutor must dismiss it and may not condition dismissal on a release of civil liability.

Q: When does a release-dismissal agreement violate Rule 3.4(i)?

A: The opinion concludes it violates Rule 3.4(i) if charges were initiated or trumped up to coerce a defendant into a release, or if the prosecutor seeks a release of civil claims unrelated to the criminal charges.

Q: Can a prosecutor require these agreements routinely?

A: No. The opinion states that a prosecutor should not require release-dismissal agreements as a matter of course in dismissing criminal charges.

Background and rules framework

The opinion interprets Virginia Rules of Professional Conduct 3.4(i) (a lawyer shall not present or threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter) and 3.8(a) (a prosecutor shall not file or maintain a charge the prosecutor knows is not supported by probable cause). These correspond to ABA Model Rules 3.4 and 3.8. The constitutional and policy framework comes from Town of Newton v. Rumery, which the opinion treats as establishing that release-dismissal agreements are permissible in principle but subject to scrutiny.

Citations and references

Rules of Professional Conduct:

• MR 3.4 / Va. Rule 3.4(i) (no criminal charges solely for civil advantage)
• MR 3.8 / Va. Rule 3.8(a) (prosecutor: no charge without probable cause)

Cases:

• Town of Newton v. Rumery, 480 U.S. 286 (1987), release-dismissal agreements not subject to a per se ban, though they may be abused.

See also

• ABA Formal Op. 467: Prosecutors' Managerial and Supervisory Obligations
• TX Ethics Op. 455: Assisting Criminal Prosecution During a Pending Civil Suit
• TX Ethics Op. 457: Referring a Dishonored Fee Check to the District Attorney

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1867.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1867

USE OF RELEASE-DISMISSAL AGREEMENTS BY
PROSECUTORS

QUESTION PRESENTED
Is it ethical for a prosecutor to enter into an agreement with a criminal defendant to dismiss
criminal charges in exchange for the defendant's release of any civil claims arising out of the
defendant's arrest, prosecution, and/or conviction?

APPLICABLE RULES AND OPINIONS
The applicable Rules of Professional Conduct are Rules 3.4(i) and 3.8(a).

ANALYSIS
A release-dismissal agreement is an agreement between a prosecutor and a criminal
defendant to dismiss criminal charges in return for a release of some entity from civil liability.
The United States Supreme Court considered the permissibility of such agreements in Town of
Newton v. Rumery, 480 U.S. 286 (1987). The case involved a prosecutor entering into an
agreement with a criminal defendant to dismiss criminal charges if the defendant signed a release
for any claim he might have for false arrest. In a 5-4 plurality opinion, the Supreme Court found
the agreement in Town of Newton valid without directly addressing the application of the Rules
of Professional Conduct to the prosecutor's actions in offering or entering into such an
agreement.
Rumery involved a defendant (Rumery) who was charged with tampering with a witness
based on a phone call that he made to a sexual assault victim whose assailant was a friend of
Rumery's. Rumery's defense lawyer threatened to sue the town and its officials, so the
prosecutor entered into a release-dismissal agreement with Rumery whereby the criminal charge
would be dismissed in exchange for his release of any civil claims against the town. Several
months later, Rumery sued the town, and the town asserted the release-dismissal agreement as an
affirmative defense. The United States Supreme Court upheld the dismissal of the civil suit,
holding that a per se ban on release-dismissal agreements is not necessary, although such
agreements may be abused in particular cases.
First, the Court rejected Rumery's argument that release-dismissal agreements are
inherently coercive because the choice between facing criminal charges and waiving civil claims
is an unfair choice. The Court held that this scenario is not more coercive than many other
choices that are routinely presented to criminal defendants, including the choice to waive a
number of constitutional rights in exchange for a guilty plea.
The Court also rejected Rumery's arguments that release-dismissal agreements violate
public policy by encouraging prosecutors to trump up charges in response to a civil rights claim
and by creating incentives for individuals injured by police misconduct not to pursue claims for
that misconduct. The Court dismissed the latter argument on the basis that no individual ever has
a duty to pursue a claim for police misconduct, so the diffuse public interest in having police
misconduct investigated and remedied should not be elevated above an individual's choice not to
pursue a civil remedy. The Court also held that to invalidate all release-dismissal agreements
based on the possible behavior of prosecutors neglects other public interests that may justify such
an agreement and improperly assumes prosecutorial misconduct. Prosecutors have enormous
discretion in charging decisions and courts are not competent to analyze the exercise of that
discretion in the absence of other evidence of misconduct. The release-dismissal agreement in
this case was particularly justified by the fact that the prosecution of Rumery would have
required a traumatized sexual assault victim, who was already reluctant to testify in the sexual
assault prosecution, to testify in a second, derivative prosecution.
Likewise, the potential for ethical misconduct by a prosecutor does not require a per se
ban on any behavior that might lead to that misconduct. Any time a lawyer is engaged in a
prosecutorial function, she may not file or maintain a charge that she knows is not supported by
probable cause. Accordingly, if a prosecutor knows that a charge is not (or is no longer)
supported by probable cause, she is obligated to dismiss the charge and may not condition that
dismissal on a release of civil liability. To maintain the charge pending agreement to or
negotiation of a release-dismissal agreement would itself violate Rule 3.8(a). Within the
parameters of Rule 3.8(a), however, a prosecutor has enormous discretion to make charging
decisions, including the type and timing of charges, as well as the discretion to make plea
bargains or to dismiss pending charges. In the absence of other factors indicating misconduct, the
prosecutor's exercise of discretion to dismiss pending charges pursuant to a release-dismissal
agreement does not indicate that Rule 3.8(a) was violated.
A prosecutor, like any other lawyer, is subject to Rule 3.4(i), which forbids presenting
criminal charges solely to obtain an advantage in a civil matter. If charges were initiated or
trumped up in order to coerce a defendant into accepting a release-dismissal agreement, then the
prosecutor's conduct would violate this Rule. However, as in the case of accord and satisfaction
agreements or agreements to pay restitution, if there is probable cause to maintain the charges
and there is no other evidence that the charges were brought/maintained solely to coerce
settlement of the civil matter, this Rule would not be violated by the negotiation of a release-dismissal agreement.
Although the Committee concludes that there is no need for a per se ban on release-dismissal agreements, any such agreement will be subject to intense legal and ethical scrutiny, as
the Rumery court made clear. Thus, a prosecutor should not require release-dismissal agreements
as a matter of course in dismissing criminal charges. To comply with Rule 3.4(i), a prosecutor
should not seek a release of civil claims that are unrelated to the criminal charges at issue.
This opinion is advisory only and is not binding on any court or tribunal.
Committee Opinion
November 15, 2012