Cba Ethics Opinion, Revised No. 62: Duties of a Public Prosecutor
| Publication year | 1989 |
| Pages | 283 |
1989, February, Pg. 283. CBA Ethics Opinion, Revised No. 62: Duties of a Public Prosecutor
Under DR 7-105(A), EC 7-21, and DR 1-102(A)(5), it is always unethical to coerce the release of a civil claim in exchange for dismissal of a criminal accusation. Release-dismissal agreements are fraught with possibilities for coercion. But release-dismissal agreements may be proper as an exception to this general rule if the charges arise from the same transaction as the criminal episode and are well founded, no serious civil rights violation has occurred of which the prosecutor is aware, the agreement is informed, voluntary, and judicially approved and the agreement is in the public interest. Thus it is necessary to determine on a case-by-case basis whether it is improper for a public prosecutor to bargain for releases of governmental agencies or their agents from actual or potential civil claims. Depending on the facts, it may likewise be improper for a city attorney to make such request of a public prosecutor. This opinion is limited to release-dismissal agreements, which is the context in which this question usually arises.
An individual arrested by municipal police officers was charged criminally. The defendant gave statutory notice of his intent to sue the municipality, and the officers involved, for actual and punitive damages arising from the same incident. The city attorney requested that the district attorney not enter into any plea disposition, or sentencing concession, without first obtaining a release from the defendant absolving the municipality and its police officers of civil liability arising from the incident.
The duty of a public prosecutor is to "seek justice." American Bar Association Standards for Criminal Justice, 2nd Ed. Vol. I, 3-1.1(c). Ethical Consideration 7-13 likewise provides that:
Ethical Consideration 7-21 statesThe responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers. . . .
The civil adjudicative...
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