In 1992, the ABA issued a formal opinion, based upon the revised model rules, on the circumstances under which it was ethically permissible to threaten (and relatedly refrain from pursuing) criminal prosecution to leverage a client’s position in a civil matter. 1 According to that opinion, threats of criminal prosecution against an opposing party may be made in order to obtain relief in a civil matter so long as (1) the criminal matter is related to the client’s underlying civil claim, (2) the lawyer has a well-founded belief that both the civil claim and criminal charges are warranted under the law and facts, and (3) the lawyer does not try to exercise or suggest improper influence over the criminal process.
Full Answer
Can a lawyer threaten criminal prosecution of a civil claim?
Rule 3.1, MRPC, prohibits the assertion of non-meritorious claims or contentions. Thus, “A lawyer who threatens criminal prosecution that is not well founded in fact and in law, or threatens such prosecution in furtherance of a civil claim that is not well founded, violates Rule 3.1.”
Should you threaten criminal prosecution to gain an advantage?
Let’s review. Prior to 1983, most ethics rules expressly prohibited using or threatening criminal prosecution solely to gain an advantage in a civil matter. This began to change in the mid-1980s when the ABA changed its model rules to remove this express prohibition.
Can a court stay a civil action until a criminal case?
Because adverse inferences may be drawn in a civil case from the assertion of Fifth Amendment rights, see Baxter v. Palmigiano, 425 U.S. 308 (1976), the court may stay the civil action until the criminal matter is resolved.
Can a civil settlement be ethically made?
But any civil settlement could not ethically include: “ [M]aking the settlement of the . . . civil claims contingent upon the content of the testimony of the [alleged victim] or upon the outcome of the [criminal] case.”
I. INTRODUCTION – OVERVIEW
While it is thankfully not a common situation, civil claims sometimes do arise as a result of alleged criminal conduct. This leads to a civil lawsuit against a defendant and a related, parallel — but unconnected — criminal charge against the same defendant, arising from the same common nucleus of operative facts.
II. SITUATIONS
These issues arise in a number of situations. For example, a police officer involved in a shooting may be sued civilly for damages for injuries suffered by the alleged victim, while simultaneously being criminally charged by the government for excessive use of force.
III. QUESTION AND SUMMARY ANSWER
So, the question arises: may the settlement of a civil case be coupled with a condition that the criminal case be dismissed? The answer is generally in the negative. While victims may agree to support dismissal or a favorable plea agreement, they may not agree, or be asked to agree, to refuse to testify or to withhold evidence in the criminal case.
IV. RULES AND LAWS
Rule 3.4, Rules of Professional Responsibility [3], provides in pertinent part as follows:
V. WHAT CANNOT BE DONE?
A civil settlement agreement presumes that the plaintiff is getting something of value in exchange for giving up something of value in the form of claims or rights.
VI. WHAT CAN BE DONE?
Avoiding all the foregoing proscriptions, victims may still agree to support dismissal or a favorable plea agreement in the criminal case, but may not be paid to agree to refuse to testify or to withhold evidence.
VII. WHAT ABOUT THE REVERSE SITUATION?
In some cases, a criminal defendant is the plaintiff against the government in a civil case, such as where a defendant is arrested and prosecuted for criminal actions, but sues the government in civil court for police misconduct in connection with the arrest.
Key points
Threats of criminal proceedings during discussions to settle a civil dispute can backfire badly.
Wrongdoing as a pressure point
Any mediator will tell you that in discussions to settle a civil dispute, it is often something apparently quite unrelated to the dispute that unlocks matters. There may be pressure points relating to publicity, a witness’s fear of giving evidence or the impact of the dispute on a separate business transaction.
Family fortunes
There is much that can go wrong here, however, as illustrated by the case of Ferster v Ferster. This case related to a dispute between shareholders in a family owned business, where two directors had caused the company to bring an action against a third, Jonathan Ferster, for breach of fiduciary duty.
The limits of Without Prejudice
The judge at first instance held that Jonathan was entitled to refer to the email, but this decision was appealed. The Court of Appeal upheld the decision though, finding that the threats in the email amounted to an unambiguous impropriety, which is an established exception to Without Prejudice privilege.
Blackmail
The Court emphasised that it was unnecessary for threats to fulfil the formal definition of blackmail in order to show unambiguous impropriety. However, this is a real risk for a commercial party that seeks to leverage knowledge of impropriety to improve the terms of a settlement.
Can a defendant settle a misdemeanor?
And despite the general prohibition against settling criminal charges for monetary consideration, in many states, defendants can resolve certain misdemeanor charges through financial settlement with the victim. (To learn more, see Civil Compromise for a Criminal Offense .)
Is a criminal case a civil suit?
Criminal cases aren't like civil lawsuits for money. With the latter, the parties have more control over the proceedings. The would-be plaintiff can agree to dismiss or not file suit in return for a specified sum (and perhaps the performance of certain conditions). But in criminal court, the plaintiff is the government, and it isn't seeking money, ...
Can a prosecution drop charges?
There are , however, situations in which the prosecution may agree to drop or hold off on filing charges. (For an example regarding low-level offenses, see Can criminal cases be resolved without going to court?) And despite the general prohibition against settling criminal charges for monetary consideration, in many states, defendants can resolve certain misdemeanor charges through financial settlement with the victim. (To learn more, see Civil Compromise for a Criminal Offense .)
Can a defendant pay their way out of a criminal case?
But in criminal court, the plaintiff is the government, and it isn't seeking money, but rather some variety of justice. So, defendants can't simply pay their way out of criminal prosecution. There are, however, situations in which the prosecution may agree to drop or hold off on filing charges.
Can a criminal defense attorney evaluate a conviction?
Although there are many ways—including (but not limited to) diversion programs, mental health and drug courts, and expungement and record-sealing opportunities—to avoid or minimize the effects of a criminal conviction, only a knowledgeable criminal defense attorney can properly evaluate whether they apply to your situation. Make sure to consult a lawyer versed in local court practices if you want to pursue any of them.
What is the challenge of civil practice?
One of the more challenging circumstances of civil practice is the development of a parallel criminal proceeding connected in some fashion to an ongoing civil matter. The complexity of the civil matter, and the strategic choices necessary for its successful resolution, grow exponentially with the overlay of criminal liability for a party or one of its principals. The specter of a criminal record, incarceration, fines, assessments, restitution and other penalties such as debarment change–in most circumstances irreversibly–how to proceed with the civil matter.
Which federal statutes provide for parallel proceedings?
These statutes include: the Sherman Act, 15 U.S.C. §§1-3, 15, 15 (a) (1988) (antitrust); the Securities Act of 1933, 15 U.S.C.
What is the rule of evidence in Fischer v. Hooper?
Hooper, 143 N.H. 585 (1999), the Court discussed New Hampshire Rule of Evidence 512, which prohibits the jury in both civil and criminal cases from drawing negative inferences from the invocation of the right against self-incrimination. (citing 2 J. Weinstein, et al, Weinstein's Evidence ¶ 513 (1996)). Rule 512 (b) requires that civil proceedings before a jury be conducted, to the extent practicable, "so as to facilitate the making of claims of privilege without the knowledge of the jury." The Court held that the trial court erred in requiring the defendant in the civil tort action to invoke his right against self-incrimination in the presence of the jury, and that the court could have dealt with the issue of the defendant's invocation of his Fifth Amendment right without the jury's knowledge, thereby satisfying Rule 512 (b). In summary, the Court held that Rule 512 and the Court's previous holding in State v. Bell, 112 N.H. 444, 448 (1972) required trial courts "to take reasonable steps to insure that the jury is unaware that a witness has invoked the privilege against self-incrimination." Id. at 596.
What does Rule 1.6 mean?
The comments to Rule 1.6 indicate that a lawyer's decision not to take such preventative action does not violate the Rule; rather that the lawyer has "professional discretion to reveal information in order to prevent such consequences.".
Which case did the Massachusetts District Court take away the requirement that internal investigations be mandated by the government?
In Whittingham v. Amherst College, the Massachusetts District Court did away with the requirement that the internal investigation and reports be mandated by the government, and extended the privilege to include voluntary internal investigations. 164 F.R.D. 124, 129-130 (D. Mass. 1995).
Who set forth the potential guideposts for the application of the privilege?
In O'Connor, Judge Keeton set forth "potential guideposts" for the application of the privilege:
Can a civil proceeding be stayed?
However, there is no absolute constitutional right to a stay of a civil proceeding pending disposition of a related criminal matter. Arthurs v. Stern, 560 F.2d 477 (1st Cir. 1977), cert. denied, 434 U.S. 1030 (1978); see also In re: Melissa M ., 127 N.H. 710, 712 (1986) (citing federal cases). The law recognizes "the principle that protection of the public interest may often require proceedings simultaneously on two fronts, and that it would unduly compromise the public interest to force the government to choose between a civil and criminal course of action." Mainelli v. United States, 611 F. Supp. 606, 615 (D.R.I. 1985); see also United States v. Lot 5, 23 F.3rd 359, 364-65 (11th Cir. 1994), cert. denied, 513 U.S. 1076 (1995); Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902-03 (9th Cir. 1989).
How many civil cases are settled?
According to a paper from the American Judges Association, as many as 97 percent of civil cases that are filed are resolved other than by a trial. While some of these cases are dismissed or are resolved through other means, the vast majority of the cases settle.
What happens if you don't settle a lawsuit?
If you are not able to reach a settlement, your case will go to court and you will need to be able to prove your claim if you are the plaintiff or to successfully prevent the plaintiff from proving a claim if you are a defendant. Brown & Charbonneau, LLP represents companies both who are suing and who are being sued.
How Can a Business Litigation Attorney Help?
The Orange County business litigation attorneys at Brown & Charbonneau, LLP can negotiate on behalf of plaintiffs and defendants involved in a wide variety of different kinds of business litigation, from breach of contract claims to employment disputes to personal injury cases against business organizations.
Why is settlement important?
Settlement gives certainty to both plaintiffs and defendants. Defendants can control their costs, avoid a rogue jury giving a very large verdict, and avoid having to pay defense costs. Plaintiffs also benefit from a quicker resolution to their case and from knowing what they will receive before they agree to the settlement. With benefits for both parties, it is common for negotiations to eventually be effective in resulting in a settlement- especially if both parties to the disagreement are represented by attorneys so they understand their rights and have a good idea of what the case is actually worth.
What is business litigation?
Business litigation attorneys represents individuals and companies who are involved in business disputes. Our goal is to represent our clients assertively, to help them to understand their rights and the worth of their case, to conduct investigations to make a strong claim, and to help clients get the best overall outcome in their case. Often, the best way to get the most favorable outcome possible is to negotiate an out-of-court settlement. A settlement allows for certainty as you eliminate the chances of losing in civil court. A settlement also allows you to avoid time, expense, and publicity that goes along with a court case.
Why do we settle?
A settlement allows for certainty as you eliminate the chances of losing in civil court. A settlement also allows you to avoid time, expense, and publicity that goes along with a court case. While settlement may be preferred for many types of business disputes, unfortunately it is not always possible to settle every civil claim. ...
Is settlement possible in every situation?
Despite the fact settlement is common and has significant benefits, it is not possible in every situation. Some of the factors which can make settlement much more difficult and reduce the chances of a successful settlement include: Weak evidence on the part of the plaintiff.
What happens if you ask for more than your claim is worth?
If you are demanding more than your claim is worth to forgo criminal prosecution, chances increase that you may violate a coercion or extortion statute.
What are the rules of ABA opinion 92-363?
ABA Opinion 92-363 addresses additional rules practitioners should keep in mind to guide their conduct. Rule 4.4 (a), MRPC, prohibits a lawyer from using means that have “no substantial purpose other than to embarrass, delay, or burden” an opposing party. Accordingly, “A lawyer who uses even a well-founded threat of criminal charges merely to harass a third person violates Rule 4.4.” Rule 4.1, MRPC, imposes a duty of truthfulness in statements to others. So, “A lawyer who threatens criminal prosecution, without an actual intent to so proceed, violations Rule 4.1.” Rule 3.1, MRPC, prohibits the assertion of non-meritorious claims or contentions. Thus, “A lawyer who threatens criminal prosecution that is not well founded in fact and in law, or threatens such prosecution in furtherance of a civil claim that is not well founded, violates Rule 3.1.”
When to tread carefully?
Tread carefully when making any threat to an opposing party, particularly relating to criminal prosecution. Lawyers frequently represent clients in matters where there are both civil and criminal remedies available, and to perform your job competently, those overlapping remedies often need to be addressed.
Do lawyers use zealous representation?
Most lawyers err on the side of caution when approaching this topic, but many lawyers do not. Zealous representation does not mean you can use as leverage every bad (or criminal) thing you know about the opposing party, even though your client may want you to.
Key Points
- Threats of criminal proceedings during discussions to settle a civil dispute can backfire badly.
- “Without Prejudice” status of communications will be lost if “unambiguous impropriety” can be shown.
- Threats of disclosing criminal conduct unless the case is settled may be blackmail, a serious crime in its own right.
Wrongdoing as A Pressure Point
- Any mediator will tell you that in discussions to settle a civil dispute, it is often something apparently quite unrelated to the dispute that unlocks matters. There may be pressure points relating to publicity, a witness’s fear of giving evidence or the impact of the dispute on a separate business transaction. It is therefore common for correspondence aimed at settling disputes to …
Family Fortunes
- There is much that can go wrong here, however, as illustrated by the case of Ferster v Ferster. This case related to a dispute between shareholders in a family owned business, where two directors had caused the company to bring an action against a third, Jonathan Ferster, for breach of fiduciary duty. The ultimate aim of the two directors in launching the action was to force Jona…
The Limits of Without Prejudice
- The judge at first instance held that Jonathan was entitled to refer to the email, but this decision was appealed. The Court of Appeal upheld the decision though, finding that the threats in the email amounted to an unambiguous impropriety, which is an established exception to Without Prejudice privilege. The Court noted that “The impropriety arises from the fact that the increase i…
Blackmail
- The Court emphasised that it was unnecessary for threats to fulfil the formal definition of blackmail in order to show unambiguous impropriety. However, this is a real risk for a commercial party that seeks to leverage knowledge of impropriety to improve the terms of a settlement. Under section 21 of the Theft Act 1968, blackmail is defined as making an “unwarranted demand with …