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

December 5, 2013

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.


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

April 14, 2013

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


One in the “Win” Column: Virginia Bar Proposes Ethics Opinion on Release-Dismissal Agreements

October 24, 2012

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.

You can view the proposed opinion online here. A PDF version can be downloaded here.

By Jordan Dupuis


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


Three More Inquiries Filed!

April 3, 2012

The Release-Dismissal Team has filed our inquiry in three more states; Pennsylvania, Arizona, and Michigan.

Meb Anderson, Utah’s Attorney General and member of the Ethics Advisory Committee for Utah’s State Bar, responded to the Clinic’s six month old inquiry regarding the use of release-dismissal agreements in Utah and whether the state bar had ever addressed the ethical implications associated with them.  Mr. Anderson informed clinic member, Windy Majer, that the Ethics Committee considers this a legal matter for the most part, not an ethical issue to be addressed by the Ethics Advisory Committee.  When the use of release-dismissal have come before the federal courts in Utah, the courts have followed a 10th Circuit Case where a Rumery evidentiary hearing is held. Because of the Utah courts’ adherence to the Rumery standard, the Utah Ethics Advisory Committee will not consider the Clinic’s inquiry.

If you’re barred in any of the following states and are interested in getting involved with this project, please contact us. Alabama, Arkansas, Delaware, Georgia, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Virginia, Wisconsin and Wyoming.


Put Another One Up on the Big Board

February 21, 2012

The Release Dismissal Team has taken our campaign to Kentucky!


The CRC is Sweeping the Nation!

February 19, 2012

As we have reported earlier, the Clinic is hard at work in our attempt to get all states bars which have not yet addressed the issue to ethically prohibit the use of  release-dismissal agreements.

We are still looking for attorneys barred in the following states that are willing to sign onto our inquiry: Alabama, Arkansas, Delaware, Georgia, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin and Wyoming.

If you are barred, or know of someone who is barred, in one of these states and are interested in supporting this project, please contact Clinic member Windy Majer at majerw@students.charlottelaw.edu.

This map will keep you appraised of just how far reaching this project is. We’ll post an updated version whenever we file in a new state and/or hear from a state in which we have already filed.


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