Release Dismissal Agreement Update: Students Advance Nation-Wide Call for Ethically Banning the Practice

September 28, 2012

Windy Ortega, formerly Windy Majer, and Jordan Dupuis only have 21 state bars left to request a formal opinion from regarding the practice of obtaining release dismissals from criminal defendants. A release-dismissal agreement is where 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 about this time last year, 13 states had already addressed the issue.  Indiana, South Carolina, New Jersey and Massachusetts prohibit the use of release-dismissal in their entirety.  California and Ohio permit defense attorneys to offer a release-dismissal agreement, but flatly prohibit a prosecutor from doing so.

Alaska, Idaho, Oregon and Utah follow the United States Supreme Court Plurality Opinion, Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187 (1987).  The plurality in Rumery held that “release-dismissal” agreements were not per se invalid as long asthe defendant: (1) Voluntarily entered into the agreement; (2) The prosecutor had a legitimate reason to make the agreement that was directly related to his prosecutorial responsibilities; and (3) Was independent of his discretion to bring criminal charges.  Significantly, Justice Powell pointed out that Rumery was a sophisticated business man, who was not in jail and was represented by an experienced criminal lawyer, who drafted the agreement.  Id. at 394.  The state of Washington requires that a defendant entering into the release-dismissal agreement be informed of its implications and meet the standards set out in Rumery.

In Justice O’Connor’s concurrence in Rumery, she recognized the dangers of release-dismissal agreements and opined that they be executed under some form of judicial supervision.  Id. at 401.  Colorado has adopted Justice O’Connor’s view in that release-dismissal agreements are only appropriate under strict guidelines, including court review and approval.

Connecticut allows release-dismissal agreements in certain circumstances.  An agreement would not be valid if the prosecutor knows or should know there is no probable cause underlying the criminal charge and he or she proceeds with the prosecution of the defendant anyway with the purpose of seeking a civil release.

All Alabama requires is that the no coercion or threats are used in obtaining a signed release-dismissal agreements.

North Carolina’s Bar, like the vast majority of state bars, had never addressed the use of release-dismissals by attorneys barred in their state.  The Inquiry we have, and will continue to pose to the rest of the bars in the United States is whether their State Bar’s Rules of Professional Conduct permit a prosecutor to enter into an agreement with a criminal defendant to dismiss criminal charges in exchange for the defendant’s release of any civil claims arising out of the defendant’s arrest, prosecution, and/or conviction.  The Clinic’s position is that the practice of using release-dismissal agreements should be prohibited in their entirety based on the inherent conflict of interest they create between a prosecutor’s duty to enforce the law and the goal of insulating third parties from civil liability.  As several other states have determined, this conflict undermines the integrity of the criminal justice system by placing liability concerns over that of a prosecutor’s special responsibility as a minister of justice.  By prohibiting this practice, the State Bar’s Professional Ethics Committee will assist prosecutors in fulfilling their constitutional mandate, protect criminal defendants from undue coercion, and in turn advance the truth-seeking function of the criminal justice system.

So far, the Clinic has filed in Arizona, D.C., Florida, Georgia, Illinois, Kentucky, Maryland, Michigan, North Carolina, Pennsylvania, Texas, Virginia, West Virginia, and Wisconsin.  The ethics committees for the bars in the District of Columbia, Maryland, North Carolina, and Virginia are currently drafting opinions.  In Arizona, Georgia, Illinois, Kentucky, Pennsylvania, Texas, and Wisconsin, the State Bars’ ethics committees are still considering our requests.  West Virginia declined to draft an Opinion because the Rules of Professional Conduct that the Clinic pointed it to already barred the use of release-dismissal agreements.  Hawaii would not accept a request from the Clinic.  The committees in Florida and Michigan denied our request because we did not present them with a “live” issue.  Essentially, the committees did not want a hypothetical; it wants a case before it where a defendant entered into the agreement like we were able to provide in our request to North Carolina.  The Clinic is currently working on researching out to attorneys barred in those states for assistance, so that we can re-file.  If you have ever heard of or represented a criminal defendant who executed a release-dismissal agreement in Florida or Michigan please contact Jordan Dupuis at dupuisj@students.charlottelaw.edu.

We are currently preparing requests for Delaware and Kansas, and New York since we have found attorneys barred in those states that are willing to co-sign with the Clinic.  We are still searching for attorneys who are barred in the following states to co-sign with the Clinic.  If you are barred in one of the following states, or know someone who is, please contact Windy Ortega at ortegaw@students.charlottelaw.edu.

Alabama, Iowa, Louisiana, Maine, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Rhode Island, South Dakota, Tennessee, Vermont, and Wyoming.

By: Windy Ortega


Legal Dose Special Report: If You Have Questions, Ask

September 27, 2012

The Legal Dose team gets all your financial aid questions answered during this in-depth discussion with Financial Aid Director, Lauren Mack.

Give the episode a listen here.


CSL Students – Save the Date! Road to Successful Re-entry From Inmate to Taxpayer

September 25, 2012

Download the flier here!


Charlotte Law Students Train to Become CHA Hearing Officers

September 21, 2012

Charlotte School of Law hosted a training session on Friday September 14th for students and faculty interested in becoming hearing officers for grievance hearings conducted at the Charlotte Housing Authority (CHA).  Henri Smith, David Samloff, and Cedric McCorkle from CHA, along with attorneys Chad Crockford and Isaac Sturgill from Legal Aid of Charlotte were in attendance as facilitators for the training.

The prospective hearing officers received a training manual, and watched a presentation of the essential elements necessary to successfully facilitate a grievance hearing for persons who have been notified by CHA that their Housing Voucher is being terminated.  Hearing Officers provide a judgment on whether or not the recipient will have their voucher terminated, or continued, based on a hearing of evidence from both CHA employees and the voucher recipient.  Though the hearing officer’s decisions are not final, the Director of the Charlotte Housing Authority may only overturn the decision if it is contrary to applicable Federal, State or local law including HUD regulations.

If you are interested in learning more about becoming a hearing officer, please contact Cleat Walters III at waltersc@students.charlottelaw.edu.

Written by Cleat Walters III



The Certificate of Relief Act

September 12, 2012

In June 2011, the North Carolina General Assembly passed the Certificate of Relief Act (S.L. 2011-265).  This act was added to the Criminal Statutes of North Carolina to allow individuals with a criminal record, including felony and misdemeanor convictions, to escape some of the civil penalties that continue to haunt them after completion of their sentence.

The Certificate is meant to relieve the “Collateral Consequences” of criminal conviction.  Collateral consequences may include a mandatory bar on occupational licensure to discretionary penalties imposed by other decision-makers.  In a civil proceeding, the Certificate may be considered favorably in determining an individual’s receipt or denial of a benefit.  Additionally, the Act provides shelter for employers from negligent hiring lawsuits as a result of their hiring an individual who has received a certificate. Perhaps most importantly, the Certificate of Relief serves as evidence that the individual is not considered to “pose an unreasonable risk to the safety or welfare of the public or any individual.” See North Carolina Justice Center, Certificate of Relief From Collateral Consequences (last visited Aug. 28, 2012).

The Statutes have established a method for petitioning the court for a Certificate of Relief; however, the law is still new and it remains to be seen how well the statutory provisions play out in the courts.  Individuals who believe they qualify for these certificates may access the form online, here.  To qualify for consideration by the court, a petitioner must establish by a preponderance of the evidence (more likely than not), that he/she:

  • Was convicted of no more than two felonies (class G, H or I) or misdemeanors in the same session of court
  • Has no other convictions of a felony or misdemeanor (other than a traffic violation)
  • At least 12 months have passed since completion of any period of probation, post-release supervision, or parole and since all active time was served (if any)
  • Has no criminal charges pending
  • Is seeking to engage or is engaged in a lawful occupation or activity
  • Has complied with all terms of sentence and probation
  • Is not in violation of the terms of any criminal sentence (if that is not true, the failure is justified, excused, involuntary, or insubstantial), and
  • That granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

This fledging avenue for relief, opportunity, and reintegration has captured the curiosity of the Civil Rights Clinic.  In the coming weeks, the Clinic will be developing a way for our members to get involved in the process of petitioning for Certificates on behalf of applicants and participating in the Certificate of Relief hearings.  We will post updates as they are available.

By: Emily Ray


The Legal Dose – Episode 6

September 11, 2012

Welcome back to season two of the Legal Dose! We’re starting off this season with some extra special coverage of the 2012 Democratic National Convention since it happened right here in Charlotte, North Carolina. Sit back and listen to some key people like Rob Zerban and Charlotte Mayor Anthony Foxx discuss the importance of this event and political awareness overall. Check in with some pretty cool green-hat-wearing National Lawyers Guild Legal Observers and get revved up with a hype BET Respect My Vote report. The Legal Dose is back for another exciting run!

Listen to the full episode HERE!


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