Representing Child Protective Services, some cases are so bad that they warrant criminal prosecution. I just got termination on a father's rights in the civil trial, and would like to offer a plea deal on the criminal charges designed to cause him to forego his right to appeal the civil judgment. The criminal charges are legit, multiple 2nd-degree felonies. Any ethical problems with that kind of trade-off? I can't find it so far.
Watch out! Texas Disciplinary Rules of Professional Conduct 4.08 (or 4.04, I don't have them in front of me at the moment) provides that a person can't use the threat of criminal charges as leverage in a civil matter. The same issue comes up in asset forfeiture cases, even though those may be considered quasi-criminal. Many prosecutors shy away from trying to offer a package deal because of this rule, or at least the perception that the prosecutor is using criminal charges to get a person to waive important civil rights.
Of course, the other side of that coin is that a prosecutor should feel free to include something in a plea agreement that is warranted by the facts of the criminal case. Otherwise, the defendant could shield himself from a particular consequence just by claiming that we were seeking leverage in the civil suit.
For example, if two parents of children are charged with horrible injury to a child of theirs, would we not include termination of custody as a condition of any plea agreement, regardless whether there was a CPS case? In making the agreement, I would not be seeking leverage in the civil case, I would be seeking justice in the outcome of the criminal case.
Rob, what do we mean by "leverage"?
Rob, the rule you cite says a lawyer may not "present, participate in presenting, or threaten to present a criminal charge solely to gain an advantage in a civil suit."
It seems like perhaps a pretty fine line to tread, but in my case I'm absolutely not doing it "solely" for that purpose. Fact is, I've already tried one of the felonies to a jury (hung, because of a botched indictment on my part), and will try him again if I have to. If "solely" is determinative, I feel safe from 4.04(b). I am somewhat irked, however, at wondering if I am "safe" from the rules. But that's another discussion topic.
John, the point you made about requiring termination is apt in this case - the mother accepted my plea offer of 10 years probation on her charges and signed a voluntary relenquishment as part of the deal. I'm certain from what I saw of the recent Dallas case that pled out after trial had begun, that termination was part of that deal.
I guess there aren't any greater conflict issues once we're at the appeal stage of the civil trial, so it's perhaps academic at this point, but I wanted to try to understand all possibilities before I make any offers.
Thanks for your inputs.
How about when you are prosecuting an elected official and offer to dismiss the case in exchange for resignation from office. The alternative is a conviction and then a removal suit. What's the difference?
As a condition of every guilty plea, we require the defendant to waive any right he might have (real or imagined) to expunge anything related to his case. Obviously, the expunction is a civil case, but is there any problem with that?
There is no problem with that. You are not presenting a criminal charge to gain an advantage in a civil suit. Frankly, there is no civil suit pending, nor would there even be the possibility of a civil suit but for the underlying crime and conviction.
Excellent insights, but it is going to be a fact question based on the "solely" issue. I doubt you are prosecuting a good criminal case solely to force the guy to agree not to seek an expunction. It is case by case, and my guess is, most folks would rather avoid the grievance process, even if they could probably win an argument over the word solely. Thus, my advice to be careful!
Frankly, this issue comes up in its most obvious form when the defense attorney hints that a dismissal will avoid a civil suit against the officer, city, or county. Then, the prosecutor must remember he doesn't work to represent the officer, city, or county's liability interests.
Also, sometimes an officer will hint that he filed the charges to avoid being sued and that a dismissal would hurt. Again, not my problem.
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