On October 2, 2012, the Virginia State Bar’s Standing Committee on Legal Ethics responded to the Civil Rights Clinic’s inquiry with a draft Legal Ethics Opinion effectively banning the routine use of release-dismissal agreements and providing for the highest legal and ethical scrutiny in those circumstances where use of a release-dismissal agreement will be allowed. Virginia is one of the first state bars to draft an opinion based on the Clinic’s inquiry, and one of the first the Clinic has reached out to, that has based its opinion on its Rules of Professional Conduct. The Standing Committee on Legal Ethics based its Opinion on Town of Newton v. Rumery, a plurality decision of the United States Supreme Court which found the use of release-dismissal agreements to be permissible, and Virginia Rules of Professional Conduct 3.8(a), which forbids a prosecutor from filing or maintaining charges that s/he knows is not supported by probable cause, and 3.4(i), which forbids the presentation of criminal charges solely to obtain an advantage in a civil matter.
The Committee stated in its Opinion that the Rules of Professional Conduct already effectively ban the practice through Rules 3.8(a) and 3.4(i). The Committee stated that “to maintain the charge [without probable cause] pending agreement to or negotiation of a release-dismissal agreement would itself violate Rule 3.8(a).” The Committee also stated that a prosecutor would violate Rule 3.4(i) “if charges were initiated or trumped up in order to coerce a defendant into accepting a release-dismissal agreement.” Although the Committee concluded that there was no need for a per se ban on release-dismissal agreements, the Committee did state that the use of release-dismissal agreements would be subject to intense legal and ethical scrutiny, as set forth in Rumery.
By tying the use of release-dismissal agreements to these rules and banning the routine use of release-dismissal agreements in dismissing charges, Virginia has joined with the likes of South Carolina, Indiana, Connecticut and others to prohibit the use of release-dismissals in criminal cases.
By Jordan Dupuis