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Ethics Advisory Opinion 05-17

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-17

RULES 3.8, 4.5 and 8.4(e)

Date: October 21, 2005

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.

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?

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.

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.

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