Can a criminal defense lawyer discuss settling a crime victim's civil claim while also asking the victim to cooperate on a plea or dismissal of the criminal charges?

Plain-English summary

The opinion addressed a lawyer for a criminal defendant charged with discharging a weapon into an occupied automobile. A separate lawyer represented the car's occupants, a family seeking civil compensation for the same incident; that lawyer was not involved in the criminal proceeding. The defense lawyer wanted to meet the family's lawyer to discuss settling the family's civil claim together with the family's cooperation in obtaining a plea agreement or dismissal of the criminal charges. The question was whether those two discussions could be combined.

The opinion concluded that the lawyers could hold the combined discussion, provided they did not make settlement of the civil claims contingent on the content of the family members' testimony or on the outcome of the case. It quoted Rule 7.9(b), which states that "[a] lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case." The opinion added that if no financial inducement was offered, the defense lawyer could seek the family's cooperation on a plea or dismissal, that a resolution of the civil matter must not result in a witness's refusal to testify or the withholding of factual information from the court, and that the district attorney responsible for the case should be advised of the discussions.

Currency note

This opinion was issued in 1996, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a defense lawyer combine settling a victim's civil claim with seeking the victim's cooperation on a plea?

A: Yes. The opinion concluded the discussions could be combined, as long as the civil settlement was not made contingent on the content of the victim's testimony or the outcome of the criminal case.

Q: What makes such a discussion improper?

A: Tying the settlement to the testimony or case outcome. The opinion read Rule 7.9(b) to bar paying, offering, or acquiescing in compensation to a witness contingent on the content of testimony or the result of the case.

Q: Did the opinion require anyone else to be informed?

A: Yes. The opinion stated that the district attorney responsible for the case should be advised of the discussions between the two lawyers.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.9(b), the advocate provision barring contingent payments to witnesses, which corresponds to Model Rule 3.4. The opinion quoted the rule's text and the related Comment recognizing that witnesses should testify truthfully and be free from financial inducements that might tempt them to do otherwise.

Citations and references

Rules of Professional Conduct:

• MR 3.4 (fairness to opposing party and counsel; witness inducements)
• North Carolina Rule 7.9(b)

See also

• NC Ethics Op. 2022 FEO 5: client paying public adjuster-witness a contingency fee
• NC Ethics Op. 2009 FEO 7: interviewing an unrepresented child prosecuting witness

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-225/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Attorney A represents Client A who is charged with the crime of discharging a weapon into an occupied automobile. Attorney X represents the occupants of the automobile, Family X, which includes a father, a mother, and two children. Attorney X has advised Attorney A that Family X is seeking compensation from Client A for damages caused by the discharge of the weapon into the automobile. Attorney X did not represent the family at the time of the indictment of Client A and he is not involved in the criminal proceeding.

Attorney A would like to meet with Attorney X to discuss settlement of the claims of Family X in conjunction with a discussion of the cooperation of the family in obtaining a plea agreement or a dismissal of the charges against Client A. May Attorney A and Attorney X discuss cooperation on Client A's criminal charge in conjunction with a discussion of the settlement of the civil claim?

Opinion:

Yes, provided the lawyers do not discuss making the settlement of the family's civil claims contingent upon the content of the testimony of the members of the family or upon the outcome of the case. Rule 7.9(b) states "[a] lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case...." The Comment to Rule 7.9 recognizes that "[w]itnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."

If no financial inducement is offered to the members of Family X, Attorney A may seek their cooperation on a plea agreement or dismissal of the charges. However, under no circumstances should a resolution of the civil matter result in a witness's refusal to testify or the withholding of factual information from the court. Moreover, the district attorney responsible for the case should be advised of the discussions between Attorney A and Attorney X.