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

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

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

  1. Anonymous says:

    Great work!!!

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