Must a Vermont prosecutor withdraw when the defendant sues the prosecutor in a frivolous civil case?

Plain-English summary

A defendant sued the prosecutor and more than 200 others in federal civil court five months after arraignment in the state criminal case. The federal court dismissed the civil suit as frivolous, and the prosecutor asked whether Vermont Rule 4.5 required withdrawal.

The committee said Rule 4.5 forbids presenting or threatening criminal charges to gain an advantage in a civil matter. It found no relationship between this prosecutor's ongoing state duties and any advantage in the later civil suit. On those facts, the prosecutor could continue without violating Rule 4.5.

Currency note

This opinion applied Vermont's Rules of Professional Conduct in 2001, after they replaced the former Code for conduct after September 1, 1999. Later rule amendments or opinions may have changed the analysis. Treat the page as historical context and verify current rules before relying on it.

Common questions

Q: Did the defendant's civil suit automatically disqualify the prosecutor?

A: No. The committee found no Rule 4.5 violation in continuing the criminal case already under way before the suit was filed.

Q: Why did Rule 4.5 not require withdrawal?

A: The committee saw no connection between the prosecution and an attempt to obtain an advantage in the defendant's civil case.

Background and rules framework

The opinion applied Vermont Rule 4.5 and compared it with former DR 7-105. The committee said the current wording broadened the prohibition but still required a link between criminal charges and an intended civil advantage.

Citations and references

Rules of Professional Conduct:

• Vermont Rule of Professional Conduct 4.5; former DR 7-105

See also

• Vermont Ethics Op. 87-16: Plea and civil advantage
• Vermont Ethics Op. 79-02: Prosecutor and private debt

Source

• Landing page: Vermont Bar Association improprieties opinions
• Original PDF: Opinion 01-04