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Release/Dismissal Agreement Offered by Prosecutor to Convicted Person

Adopted: October 15, 2013

Opinion rules that, subject to conditions, a prosecutor may enter into an agreement to consent to vacating a conviction upon the convicted person’s release of civil claims against the prosecutor, law enforcement authorities, or other public officials or entities.


Defendant was convicted of a crime in a North Carolina state court and sentenced to the North Carolina prison system. Ten years later, the parties learned of exculpatory evidence. Defendant, with the advice of two defense counsel, signed a release that provided, in pertinent part, as follows:

[Defendant] for and in consideration of release from the North Carolina Department of Corrections, do[es] hereby voluntarily agree without any threat, coercion, or prosecutorial misconduct, that he will never...bring legal action of any kind against the State of North Carolina, the County of..., the...County Sheriff’s Department, Detective...of the...County Sheriff’s Department, any and all members and employees of the...County District Attorney’s Office.... This Release is given and executed with due knowledge [and] cognizance of the Supreme Court’s recognition of the validity and enforceability of Releases of this nature in the case of Town of Newton v. Rumery, 480 U.S. 386 (1987).

May a state or federal prosecutor prepare, offer, negotiate, or execute an agreement (a “release/dismissal agreement”) that conditions the prosecutor’s agreement not to object to or contest a motion for appropriate relief initiated by the convicted person upon the convicted person’s agreement to release civil claims against public officials or entities arising from the convicted person’s arrest, prosecution, or imprisonment?


Yes, but the prosecutor must take great care not to transgress existing ethical rules.

A per se ethical rule against prosecutors negotiating post-conviction release/dismissal agreements1would effectively prohibit a defense lawyer from offering on behalf of his or her client a waiver of potential civil claims to persuade a prosecutor to support the prisoner’s motion to vacate the conviction. Some defense lawyers wish to have this option available when the extent to which new exculpatory evidence casts doubt on the defendant’s guilt is debatable.

In negotiating such an agreement, however, a prosecutor must be mindful of his or her ethical obligations. For instance, if recently discovered exculpatory evidence shows that the prisoner was innocent of the charge(s) for which he is currently incarcerated and he files a legally meritorious motion with the appropriate court to vacate his conviction, the prosecutor may not make his or her consent to the motion contingent on the prisoner waiving potential civil claims arising from his wrongful conviction. Rule 3.1 (“A lawyer shall not... defend a proceeding...or...controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous...”). See also Rule 3.8, Special Responsibilities of a Prosecutor, cmt. [1] (responsibility as minister of justice carries with it specific obligations to see that defendant is accorded procedural justice and that guilt is decided upon sufficient evidence).

In the fact pattern giving rise to this inquiry, the prisoner was represented by counsel in the negotiation of the release-dismissal agreement. A prosecutor should not negotiate such an agreement with an unrepresented prisoner unless the prisoner insists upon proceeding pro se. Cf. Rule 3.8(c) (prosecutor shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights). Before negotiating such an agreement with a pro se prisoner, judicial approval of the pro se representation should be obtained. Cf. Rule 3.8, cmt. [3].

Even if the ethical concerns identified above have been addressed, 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. Rule 4.1; Rule 8.4(c).

In communicating with the court regarding the prosecution’s position on whether the conviction should be vacated, the prosecutor should disclose the existence of any agreement conditioning the prosecutor’s position on the prisoner’s agreement to waive potential civil claims. Cf. RPC 152 (prosecutor must ensure that all material terms of negotiated plea are disclosed in response to direct questions).


  1. There is no general legal prohibition against a prosecutor negotiating or entering into a “release-dismissal agreement” in the pre-conviction context. See Town of Newton v. Rumery, 480 US 386, 395-97 (1987) (rejecting the assumption “that all–or even a significant number–of release-dismissal agreements stem from prosecutors abandoning ‘the independence of judgment required by [their] public trust’” and concluding that a per se rule of invalidity of such agreements would fail to credit other relevant public interests and improperly assume prosecutorial misconduct). See also Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 353-54 & n.3 (4th Cir. 2003) (applying Rumery to enforce a release-dismissal agreement and noting that such agreements serve the legitimate public interest of avoiding future litigation); and Senator v. Baltimore County, 917 F.2d 1302, 1990 WL 173827 (4th Cir. 1990) (unpub.) (“the release agreement serves the public interest”).
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