Release-Dismissal Update: Advocates Propose Changes to NC Bar’s Proposed Formal Ethics Opinion

In response to the North Carolina State Bar’s Ethics Committee’s Proposed Formal Ethics Opinion banning the use of release-dismissal agreements by state prosecutors, the Civil Rights Clinic, North Carolina Advocates for Justice, North Carolina Center for Actual Innocence, and the Duke Law Wrongful Convictions Clinic submitted letters to the Committee with proposed changes to the language of the Opinion.  You can see the letters here:

The letters submitted by these organizations collectively ask for the Opinion to apply equally against federal prosecutors as against state prosecutors.  The reasoning provided by the NCAJ and the Civil Rights Clinic is found in federal law.  Pursuant to 28 U.S.C. § 530B(a), government attorneys are required to follow the laws and rules of the state in which they practice as they are applied to attorneys practicing in that state.  Additionally, the federal district court rules for the Western, Middle, and Eastern Districts of North Carolina state that lawyers must be members in good standing with the North Carolina Bar before being admitted to the federal bar.  According to Burton Craige of NCAJ, not applying the Opinion against federal prosecutors would be “unwarranted and unprecedented” because the “North Carolina Rules of Professional Conduct apply equally to all prosecutors licensed by the State Bar.”

Additionally, the Clinic proposed changing the one sentence of the opinion from “When new evidence clearly demonstrates that a convicted person should be released from prison … .” to “When new evidence demonstrates … .”  While removing one word from the Opinion appears to be trivial, the use of the word “clearly” creates an ambiguity that may open the door to the use of release-dismissal agreements based on a prosecutor’s subjective belief that new evidence is not clear to him that a convicted person should be released.

NCAJ and the Clinic also proposed that the Committee add language to the Opinion referencing the clear conflict of interest that exists when a prosecutor seeks a release-dismissal agreement:

A prosecutor who presents a release/dismissal agreement to a convicted person is representing the civil interests of the public officials or entities who will presumably benefit from such an agreement.  That role is in conflict with his role as a representative of the sovereign and a minister of justice.  Under Rule 1.7(a), it is a conflict of interest that cannot be resolved by consent.

Finally, the Clinic proposed that the Opinion should apply to all phases of criminal investigation and prosecution because the concerns that serve as the foundation of the proposed opinion also apply in a pre-conviction context.

By: Jordan Dupuis

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