The NC State Bar Substantially Curtails Prosecutors from Forcing Defendants to Waive their Civil Rights

By: Celia Olson

As a result of the CSL Civil Rights Clinic’s (“Clinic”) inquiry filed over a year ago, the North Carolina State Bar (“Bar”) recently issued a Formal Ethics Opinion significantly curtailing the use of Release-Dismissal Agreements (“RDA”).

RDAs are “deals” offered by a district attorney to wrongly convicted, and in many instances incarcerated, individuals.  In exchange for the district attorney moving to dismiss the case, a defendant waives his or her right to sue any persons involved in his or her prior arrest, prosecution, conviction, or detention.

The Clinic was approached over a year ago by a man who served ten years of a life sentence for a sexual assault he did not commit, and who had signed an RDA to get out of prison.  At the time, RDAs were not per se invalid and were often legally enforceable.  However, the Clinic was so astounded at the coercive nature of his circumstances that it decided to research the practice of RDAs both in North Carolina and across the country.

Not surprisingly, North Carolina had never addressed this issue head-on, as was the case in most other states.  However, those states that had prohibited RDAs gave a foundation for the Clinic to begin its research.  The Clinic drafted a formal inquiry to the Bar detailing the various ethical approaches other states use to address RDAs, and detailed the appropriate response for North Carolina in response to the problem: to ethically prohibit RDAs in all circumstances, from arrest to post conviction.

The Clinic joined forces with the North Carolina Advocates for Justice and its liaison to the Bar, Burton Craig, to lobby for an ethical prohibition.  After over a year of hard work and persistence, the Bar recently addressed this matter.   While the Bar chose not to explicitly ban all instances of Release-Dismissal Agreements, it does provide significant limitations on their use.

First, the opinion prohibits a prosecutor from conditioning a motion to vacate a conviction due to newly uncovered evidence upon signing a waiver (RDA).  Second, before negotiating a waiver with a pro se prisoner, it requires the prosecutor to seek judicial approval of pro se representation.

Further, and most importantly:

“[A] prosecutor may only negotiate an agreement that includes a waiver of the prisoner’s potential civil claims against the sovereign or public officials if the prosecutor has the legal authority to represent the interests of the sovereign or those officials with respect to such civil claims.  It would be unethical for the prosecutor explicitly or implicitly to misrepresent the scope of the prosecutor’s authority to negotiate with respect to such civil claims.”

This limitation is critical because, in North Carolina, prosecutors do not have the authority to represent most police agencies and government actors in civil proceedings, which effectively bars release-dismissal agreements in the most common situation in which they would arise.

The Clinic is satisfied with the opinion because these limitations strengthen the ethical fabric protecting the civil rights and remedies of wrongfully convicted individuals.  However, their efforts did not stop there.  The Clinic was (and is not) satisfied that the majority of state bars have never addressed this issue.  So, after filing an inquiry in North Carolina, the Clinic filed similar inquires in eighteen other states.  Several states have declined the invitation to issue an opinion but many are still considering the substance of the Clinic’s inquiry.  Virginia was the first to issue an opinion which prohibits the “routine” use of RDAs, and subjects any non-routine use to intense ethical and legal scrutiny.

To read the entire Formal Ethics Opinion published by the North Carolina State Bar, go to http://www.ncbar.com/ethics/ethics.asp.

If you would like more information or have any questions about the Civil Right Clinic’s work contact Jason Huber at jhuber@charlottelaw.edu.

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