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

Plain-English summary

By unanimous vote, the committee adopted an informal opinion addressing prosecutors who propose to dismiss criminal charges in exchange for the defendant's release of civil claims against a government entity or its officials.

The committee concluded that nothing in the Rules of Professional Conduct prohibits such a release-for-dismissal agreement, but it set three conditions: the prosecutor must have a well-grounded belief that the charges are supported by probable cause, the defendant must be informed of the implications of the agreement, and the release agreement must be enforceable under the decision in Newton v. Rumery, 107 S.Ct. 1187 (1987).

The committee anchored the probable-cause condition in RPC 3.8(a). If the prosecutor concludes (or reasonably should conclude) that the charges are not supported by probable cause, the prosecutor already has an ethical obligation to dismiss, and it would be unethical to condition that dismissal on a release; as the opinion put it, a lawyer cannot impose conditions upon an act the lawyer is required unconditionally to perform. Only where probable cause supports the charges is conditioning dismissal on a release not per se unethical.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct, and it rests on the contemporaneous Supreme Court decision in Newton v. Rumery (1987). The prosecutor rule then numbered RPC 3.8 corresponds to Model Rule 3.8 and was rewritten in the current rules; later case law on release-dismissal agreements has developed as well. Treat this page as historical context, not current guidance. Verify against current rules and case law before relying on anything mentioned here.

Common questions

Q: Can a prosecutor condition dismissal of charges on a release of civil claims?

A: Per the opinion, yes, but only when the prosecutor has a well-grounded belief that the charges are supported by probable cause. On those facts, conditioning dismissal on a release is not per se unethical.

Q: Why can't a prosecutor demand a release when probable cause is missing?

A: The opinion reasons that if the charges are not supported by probable cause, RPC 3.8(a) already requires the prosecutor to dismiss. A lawyer cannot impose conditions upon an act the lawyer is required unconditionally to perform.

Q: What did the committee say about enforceability?

A: The committee pointed to Newton v. Rumery, where the Supreme Court held such an agreement is not per se invalid and is enforceable, absent prosecutorial misconduct, if it was the product of an informed and voluntary decision. The committee said prosecutors should use such agreements only with a well-founded belief the release would be enforceable under Rumery's criteria.

Background and rules framework

The opinion applies the prosecutor rule then numbered Washington RPC 3.8, corresponding to Model Rule 3.8, whose subsection (a) directs the prosecutor to refrain from prosecuting a charge the prosecutor knows is not supported by probable cause. The committee read that duty as decisive: where probable cause is lacking, dismissal is mandatory and cannot be conditioned on a release; where probable cause exists, the release-for-dismissal agreement is governed by the enforceability standard the United States Supreme Court set in Newton v. Rumery.

Citations and references

Rules of Professional Conduct:

• Washington RPC 3.8(a) (a prosecutor shall refrain from prosecuting a charge not supported by probable cause), corresponding to Model Rule 3.8(a).

Cases:

• Newton v. Rumery, 107 S. Ct. 1187 (U.S. 1987), a release-dismissal agreement is not per se invalid and is enforceable, absent prosecutorial misconduct, if the product of an informed and voluntary decision.

See also

• WSBA Ethics Op. 1124: a defendant's threat to sue the prosecutor creates no disqualifying conflict
• WSBA Ethics Op. 1020: what a prosecutor may tell witnesses about defense interview access
• ABA Formal Op. 467: managerial and supervisory obligations of prosecutors

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=215

Original opinion text

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

Advisory Opinion: 1135
Year Issued: 1987
RPC(s): RPC 3.8
Subject: Prosecutor seeking release from civil liability in exchange for dismissal of criminal charge

By unanimous vote, the Committee adopted the enclosed Informal Opinion essentially stating that nothing the Rules of Professional Conduct prohibits a prosecutor from seeking a release from civil liability from a defendant in exchange for dismissal of charges, provided that the prosecutor has a well grounded belief that the charges are supported by probable cause, that the defendant is informed of the implications of the agreement, and that the release agreement would be enforceable under the decision in Newton v. Rumery, 107 S.Ct. 1187 (1987).

INFORMAL OPINION #1135

RELEASE AGREEMENTS SOUGHT BY PROSECUTORS

IN EXCHANGE FOR DISMISSAL OF CHARGES

QUESTION:

May a prosecutor offer to dismiss criminal charges in exchange for the defendants agreement to release all civil claims against the government entity or officials?

ANSWER:

Nothing in the Rules of Professional Conduct prohibits a prosecutor from seeking a release from civil liability from a defendant in exchange for dismissal of charges, provided that the prosecutor has a well grounded belief that the charges are supported by probable cause, that the defendant is informed of the implications of the agreement, and that the release agreement would be enforceable under the decision in Newton v. Rumery, 107 S.Ct. 1187 (1987).

DISCUSSION:

An inquiry has been made by a prosecutor who represents municipalities regarding ethical problems faced by prosecutors when proposing to dismiss criminal charges in exchange for execution by the defendant of a release of civil claims against the government entity or officials. Rule 3.8 of the Rules of Professional Conduct provides in part:

The prosecutor in a criminal case shall:

(a) Retrain from prosecuting a charge that the prosecutor knows is not supported by probable cause... Therefore, if a prosecutor concludes (or reasonably should conclude) that the charges against a defendant are not supported by probable cause, the prosecutor has an ethical obligation to dismiss the charges and, in those circumstances, it would be unethical for the prosecutor to condition dismissal on execution of a release of civil liability. A lawyer cannot impose conditions upon an act that the lawyer is required unconditionally to perform under the Rules of Professional Conduct.

If, on the other hand, the prosecutor has a well founded belief that the charges are supported by probable cause, then it would not be per se unethical to condition dismissal upon execution of a release.

The United States Supreme Court in Newton v. Rumery, 107 S.Ct. 1187 (1987), held that such a plea bargain offer is not per se violative of a criminal defendants s rights, and that such a plea bargain, once made, is enforceable where there is no evidence of prosecutorial misconduct, if it was the product of an informed and voluntary decision on the part of the defendant. Given the potential for abuse in such release agreements, the Committee is of the opinion that prosecutors should use them only when the prosecutor has a well grounded belief that the charges are supported by probable cause, and also a well founded belief that the release would be legally enforceable under the criteria set out in the Rumery decision.