Release/Dismissal Agreement Offered by Prosecutor to Convicted Person [2013 Formal Ethics Opinion 1]
There is no per se ethical rule against a prosecutor agreeing to support a defendant’s motion for appropriate relief in exchange for a defendant executing a release of claims.
View formal ethics opinion in full here.
According to the facts of this inquiry, the Defendant was convicted of a crime in North Carolina and sentenced to prison. After exculpatory evidence emerged ten years later, the Defendant, with the advice of counsel, signed a release of civil claims against the State of North Carolina, the county, the sheriff’s office, and the District Attorney’s office. The issue is whether a prosecutor may agree to support a defendant’s motion for appropriate relief (MAR) in exchange for a defendant executing a release of claims.
The opinion concludes that there is no per se ethical rule against such agreements; however, the prosecutor “must take great care not to transgress existing ethical rules.” Rule 3.1 prohibits the prosecutor from conditioning consent to a MAR where there is no “basis in law and fact” to contest the motion. Additionally, Rule 3.8 denotes the special responsibilities of a prosecutor, one of which is the responsibility to be a minister of justice.
The opinion notes several other guidelines that prosecutors should observe in entering such agreements:
- “A prosecutor should not negotiate such an agreement with an unrepresented prisoner unless the prisoner insists upon proceeding pro se.”
- “A prosecutor may only negotiate an agreement that includes a waiver of the prisoner’s potential civil claims against the sovereign or public officials if the prosecutor has the legal authority to represent the interests of the sovereign or those officials with respect to such civil claims.”
- “In communicating with the court regarding the prosecution’s position on whether the conviction should be vacated, the prosecutor should disclose the existence of any agreement conditioning the prosecutor’s position on the prisoner’s agreement to waive potential civil claims.”
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