Ohio Board Advisory Opinion Op 94-010

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 94-10
Issued August 12, 1994
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: When a prosecutor becomes aware that a criminal action lacks merit, it is improper
under DR 1-102(A) (5) and DR 7-105(A) of the Ohio Code of Professional Responsibility for the
prosecutor to offer to dismiss the criminal charge in exchange for the defendant's promise to sign a
release of all civil claims against an arresting police officer, other officers at the scene, and the city.
OPINION: This opinion addressing whether it is proper under the Ohio Code of Professional
Responsibility for a prosecutor to offer to dismiss a criminal charge in exchange for a defendant's
promise to sign a release of all civil claims against an arresting police officer, other officers at the
scene, and the city, once the prosecutor becomes aware that the criminal charge lacks merit.
This opinion proceeds on the assumption that criminal charges are properly initiated by police
officers, but later are found by the prosecutor to lack merit. This opinion is not addressing a
situation wherein a prosecutor institutes or causes to be instituted criminal charges not supported by
probable cause. That conduct is prohibited by DR 7-103(A) -- "A public prosecutor or other
government lawyer shall not institute or cause to be instituted criminal charges when he [she]
knows or it is obvious that the charges are not supported by probable cause."
A prosecutor's duty is to see that justice is done. A prosecutor "may prosecute with earnestness and
vigor--indeed he [she] should do so. But, while he [she] may strike hard blows, he [she] is not at
liberty to-strike foul ones." Berger v. U.S., 295 U.S. 78, 88 (1935).
In this Board's view, a prosecutor's offer to dismiss a criminal charge that the prosecutor considers
to lack merit in exchange for a civil release from a defendant is a foul strike. Such conduct offends
several rules within the Ohio Code of Professional Responsibility, in particular, DR 1-102(A) (5)
and DR 7-105(A).
DR 1-102(A) (5) A lawyer shall not: Engage in conduct that is prejudicial to the
administration of justice.

Op. 94-10 2
DR 7-105(A) A lawyer shall not present, participate in presenting, or threaten to
present criminal charges solely to obtain an advantage in a civil matter.
The United States Supreme Court has held that as a matter of law release-dismissal agreements are
not per se invalid. See e.g., Newton v. Rumery, 480 U.S. 386, 392 (1987) (addressing the
enforceability of a prosecutor and defendant's agreement to waive a right to sue as a question of law
decided by reference to common law principles). The Supreme Court of Ohio has held that a
release executed between private parties, the consideration of which, in whole or in part is the
suppression of a criminal prosecution, is against public policy and also is void for lack of
consideration. Brown v. Best Products Co., 18 Ohio St. 3d 32, 34-35 (1985). In contrast to these
cases, this opinion addresses ethical behavior under the Ohio Code of Professional Responsibility
and deals with criminal charges that a prosecutor finds to lack merit.
Several states have considered whether civil release-criminal dismissal agreements are ethical. In
California, a prosecutor may not condition an offer to dismiss a criminal action upon a defendant's
stipulation that there was probable cause for the arrest, because the practice constitutes a threat to
obtain an advantage in a civil dispute. State Bar of California, Op.1989-106 (undated). According
to the California committee, the imbalance of power between the prosecutor and the defendant
makes it difficult to consider a release-dismissal by the same standards as other settlement
agreements. Id. In New Jersey, when probable cause does not exist, a prosecutor may not require,
as a condition to a plea bargain, that the defendant sign an agreement that probable cause existed
for the arrest, that no excessive force was used, and that the right to sue the arresting officer is
waived. Such conduct violates the rules prohibiting prosecution of a charge not supported by
probable cause and presenting criminal charges to gain advantage in a civil matter. New Jersey
SupCt, Advisory Comm. on Professional Ethics, Op. 661 (1992).
Also, as example, in Oregon, it is permissible for a district attorney to offer a plea bargain in a
pending criminal prosecution upon condition of a defendant's waiver of civil remedies, however,
this advice is qualified. The Oregon committee stated in a footnote that if the district attorney were
proceeding with the prosecution solely for the purpose of seeking a civil release of the arresting
officers or if there were no probable cause to support the charge, it would be improper under their
rules of conduct. Oregon State Bar, Op. 1991-113 (1991). In Colorado, it is unethical to coerce the
release of a civil claim in exchange for dismissal of a criminal accusation, but release-dismissal
agreements may be proper as an exception to the general rule when the charges

Op. 94-10 3
arise from the same episode; the prosecutor is aware of no serious civil rights violation; the
agreement is informed, voluntary, judicially approved, and is in the public interest. Colorado Bar
Ass'n, Op. 62-Rev. (1988).
It is this Board's view that justice is not served when a criminal defendant is asked to relinquish
civil and constitutional rights in exchange for a prosecutor's agreement to dismiss criminal charges
that the prosecutor has concluded lack merit. Clearly, a prosecutor must seek justice. We are
reminded of this through EC 7-13.
EC 7-13 The responsibility of a public prosecutor differs from that of the usual
advocate; his [her] duty is to seek justice, not merely to convict. This special duty
exists because: (1) the prosecutor represents the sovereign and therefore should use
restraint in the discretionary exercise of governmental powers, such as in the
selection of cases to prosecute.
In seeking justice, it is a prosecutor's duty to dismiss charges that lack merit. The Code of
Professional Responsibility acknowledges this duty in EC 7-14.
EC 7-14 A government lawyer who has discretionary power relative to litigation
should refrain from instituting or continuing litigation that is obviously unfair. A
government lawyer not having such discretionary power who believes there is lack
of merit in a controversy submitted to him should so advise his [her] superiors and
recommend the avoidance of unfair litigation.
A prosecutor's duty to dismiss charges lacking merit should not be conditioned upon a defendant's
agreement to release the right to pursue civil remedies to which he or she may be entitled. Such
conduct by a prosecutor does not seek or serve justice and in this Board’s view it thwarts justice in
violation of DR 1-102(A) (5). Such conduct also does not further the aspirations of EC 7-14.
Further, when a prosecutor has concluded that a criminal charge lacks merit, the imbalance of
power between a prosecutor and a criminal defendant should not be used as leverage to coerce a
defendant into releasing civil rights. When a prosecutor offers to dismiss a criminal charge that
lacks merit in exchange for a defendant's waiver of the right to pursue a civil remedy, the quid pro
quo is illusory. The defendant relinquishes civil rights in exchange for the prosecutor's agreement
to fulfill an ethical duty, the ethical duty to not prosecute criminal charges that lack merit. Such
conduct is a

Op. 94-10 4
misuse of the criminal process and in this Board's view constitutes a threat to continue a criminal
charge to gain advantage as to a civil matter in violation of DR 7-105(A).
In conclusion, this Board advises that when a prosecutor becomes aware that a criminal charge
lacks merit, it is improper under DR 1-102(A) (5) and DR 7-105(A) of the Ohio Code of
Professional Responsibility for a prosecutor to offer to dismiss the criminal charge in exchange for
a defendant's promise to sign a release of all civil claims against an arresting police officer, other
officers at the scene, and the city.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.