On January 29, 2013, the Ethics Committee of the North Carolina State Bar responded to the Civil Rights Clinic’s inquiry with a proposed Formal Ethics Opinion banning the use of release-dismissal agreements by state prosecutors. North Carolina, one of the first states the Clinic contacted at the start of this project, is among the first state bars to draft an opinion initiated by the Clinic’s inquiry. The Ethics Committee based its Opinion on North Carolina Rule of Professional Conduct 3.8(a), which forbids a prosecutor from prosecuting a charge that the prosecutor knows is not supported by probable cause.
A release-dismissal agreement happens when a prosecutor enters into an agreement with a criminal defendant to dismiss criminal charges in exchange for the defendant’s release of any and all civil claims arising out of the defendant’s arrest, prosecution and/or conviction. When the Clinic started the project in the fall of 2011, 13 states had already addressed the issue. Indiana, South Carolina, New Jersey and Massachusetts prohibit the use of release-dismissal in entirely. California and Ohio permit defense attorneys to offer a release-dismissal agreement, but flatly prohibit a prosecutor from doing so. For more information about the project, where we have filed, and the status of the project, check out these articles:
- Release Dismissal Agreement Update: Students Advance Nation-Wide Call for Ethically Banning the Practice
- The Ethics of Release-Dismissals
- One in the “Win” Column: Virginia Bar Proposes Ethics Opinion on Release-Dismissal Agreements
In the proposed Opinion, the Committee stated that the inquiry is limited only to state court prosecutions where the state “did not also assert civil claims against the defendant arising from the same alleged criminal conduct.” The Committee further stated, “When new evidence clearly demonstrates that a convicted person should be released from prison, the duty to ‘seek justice’ requires a state prosecutor to initiate a proceeding to have the conviction vacated if not already initiated by the convicted person.” The Committee asserted that conditioning the initiation of that proceeding, or cooperation with a proceeding initiated by the convicted person, upon the convicted person’s release of all civil claims against authorities “violates the most basic tenets of a prosecutor’s responsibilities as set forth in Rule 3.8.”
By tying the use of release-dismissal agreements to these rules and banning the use of release-dismissal agreements in dismissing convictions, North Carolina is on its way to joining the likes of Virginia, South Carolina, Indiana, Connecticut and others to prohibit the use of release-dismissals in criminal cases.
The Civil Rights Clinic will submit written comments on the proposed Formal Ethics Opinion to the Ethics Committee concerning the absence of federal prosecutors from the Opinion’s restrictions, its limitation of the ban to post-conviction matters, and language in the Opinion that requires clear demonstration that a convicted person should be released from prison.
If you wish to submit a comment on the proposed Formal Ethics Opinion to the Ethics Committee, please send the comments to
North Carolina State Bar
PO Box 25908
Raleigh, NC 27611
By Jordan Dupuis