South Carolina Criminal Defense Blog

Years ago, I would from time to time allow an agreement not to sue in exchange for the dismissal of a client's criminal charges. What was the harm, if we had no intention of suing anyway? At some point, I stopped advising clients to accept this type of agreement, and began telling the officer or prosecutor that in my opinion this violated the ethical rule against using criminal charges to gain an advantage in a civil matter. Even if we have no intention of filing a lawsuit, I came to believe that I should not give up any potential rights of my client in exchange for the dismissal of a case that should never have been brought in the first place. Ironically, I think it was a prosecutor that pointed this out to me.

Finally laying the matter to rest, today a colleague pointed out that there is an ethics advisory opinion directly on point in South Carolina, which finds that such agreements implicate rules 3.8, 4.5 and 8.4(e):

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.

Although the opinion specifically addresses the duties of a solicitor or other attorney-prosecutor, I think that the spirit of the rules apply equally to the defense lawyer, and, regardless, no defense lawyer should be waiving such an important right of their client. I point out that the ethics rules that govern lawyers do not govern police officers, and in many smaller cases officers are still required to prosecute their own cases. In most cases, the prosecution does not have a case to begin with and they want to dismiss the charges - the officer is just afraid that he will be sued once the case is dismissed. In most cases, there are no grounds to bring a lawsuit against the officer anyway and there is no basis for their concern.

The bottom line is, if there were grounds for a lawsuit against the officer based on their conduct, the criminal case should be won at trial anyway. If the wrongdoing involved an arrest without probable cause, the criminal case should not go forward. If the wrongdoing involved use of excessive force, a conviction on the underlying offense will not necessarily prevent them from filing suit. Either way, if the choice is to try a case or agree to a release in exchange for a dismissal, the attorney should try the case.