Can a lawyer require the other party to sign general releases of civil claims before agreeing to a mutual dismissal of municipal-court cross-complaints?

Plain-English summary

The inquiring law firm represented a corporation providing security guard services to a governmental authority under a public contract, and in that capacity represented guards in municipal court who were the subject of criminal complaints, typically simple-assault allegations, often accompanied by a cross-complaint by the guard against the other party. All complaints were filed at the parties' own initiative before the firm became involved; the firm did not suggest, counsel, or initiate any of them. When emotions cooled and the parties were open to settlement by mutual dismissal of the cross-complaints, the firm's policy, per its client's directives, was to require an exchange of releases before dismissal, with the guard's release running to the other party and the other party's release running to the guard, the guard service, and the governmental authority. The firm asked whether requiring such a general release as a prerequisite to mutual dismissal of claims in a criminal matter violated ethical prohibitions.

The Committee found no ethical violation on the stated facts. It observed that no specific Rule of Professional Conduct covers the subject matter, and that this was not a situation in which a lawyer participates in, or threatens to present, criminal charges to obtain an improper advantage in a civil matter. It quoted the former Code of Professional Responsibility, DR 7-105(A) ("Threatening Criminal Prosecution"), which barred a lawyer from presenting, participating in presenting, or threatening to present criminal charges to obtain an improper advantage in a civil matter. Here, the criminal complaint had been filed against a guard who then filed a cross-complaint, and no civil actions were filed by either party. The Committee reasoned that the original complainant remained free to continue his criminal complaint and retain his civil rights, and that the cross-complainant, having been required to defend, did nothing wrong in requesting that, in addition to releases between the complainants, the original complainant also deliver releases for civil suits in favor of the guard service and the governmental authority. For those reasons it concluded there was no ethical violation.

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and it discusses a provision of the superseded Code of Professional Responsibility (DR 7-105(A)). 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: Is it improper to require civil releases as a condition of dismissing criminal cross-complaints?

A: Not on these facts. The opinion found no ethical violation, because no one threatened or used criminal charges to gain an improper advantage in a civil matter.

Q: What rule governs threatening criminal charges to gain a civil advantage?

A: The opinion pointed to the former Code's DR 7-105(A), which barred presenting, participating in presenting, or threatening to present criminal charges to obtain an improper advantage in a civil matter, and found it not implicated here.

Q: Why was conditioning the dismissal on releases acceptable here?

A: Per the opinion, the criminal complaints were filed by the parties before the firm's involvement, no civil actions were pending, and the cross-complainant who had to defend did nothing wrong in seeking releases as part of a mutual dismissal.

Background and rules framework

The opinion analyzes whether conditioning the dismissal of criminal cross-complaints on an exchange of civil releases runs afoul of the prohibition on using criminal charges to gain a civil advantage. It noted that no specific Rule of Professional Conduct covered the subject and measured the conduct against former DR 7-105(A) of the superseded Code of Professional Responsibility.

Citations and references

Former disciplinary rule:

• DR 7-105(A) (threatening criminal prosecution to obtain an improper advantage in a civil matter)

See also

• NJ ACPE Op. 595: Collection Letter Threatening a Criminal Complaint
• NJ ACPE Op. 616: Blanket Settlement Offers to Multiple Plaintiffs

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp565-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

116 N.J.L.J. 225, August 15, 1985

OPINION 565

Requiring Release of Civil Claims as Prerequisite for Dismissal of Municipal Court Complaint

The law firm represents a corporation providing security guard services to a governmental authority under the terms of a public contract. In connection therewith, it represents guards in municipal court who are the subject of criminal complaints.

Typically, these complaints take the form of allegations of simple assault. Additionally, each case often involves a cross complaint by the guard against the other party, also in the nature of simple assault.

All complaints that are filed by the guard or the other party are done so at their own initiative and prior to the law firm's involvement. The firm does not suggest, counsel or initiate the filing of any complaints or cross complaints, but, rather, is contacted by the guard service to represent the guards after the complaints have been signed and the summons issued.

Frequently, at the time that the matter reaches trial, the emotions of the parties have dissipated and settlement by mutual dismissal of the cross complaints is acceptable to both parties. In circumstances where the adversaries approach the law firm regarding the possibility of such a settlement, it has been the policy of that office, as per the directives of its client, to require an exchange of releases by the parties prior to dismissal of the complaints. An appropriate release is executed by the security guard involved running in favor of the other party and the party executes a release running in favor of the guard, the corporation employing the guard, and the governmental authority for whom the services were rendered.

The inquiry presented to the Committee is whether it is a violation of ethical prohibitions to require the execution of a general release in favor of the guard, the guard service and the governmental authority as a prerequisite to the mutual dismissal of claims in a criminal matter.

We find no ethical violation based on the stated facts. There is no specific rule of Professional Conduct which covers the subject matter. We are not dealing with a situation in which a lawyer participates in, or threatens to present criminal charges to obtain an improper advantage in a civil matter. The prior Code of Professional Responsibility, Rule 7-105(A) entitled "Threatening Criminal Prosecution" provided as follows:

A lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.

In the case now before us, the criminal complaint was filed against a guard who filed a cross complaint. No civil actions were filed by either party.

If the original complainant (who was at all time free to continue his criminal complaint and retain all his rights pertaining to civil suits), desired to effect a mutual dismissal of the "cross complaints", it was his privilege to suggest it, but the cross complainant, having been required to defend against the complaint did nothing wrong in requesting that in addition to an exchange of releases between the complainants, the original complainant must also deliver releases for civil suits in favor of the guard service, and the governmental authority.

For the reasons expressed, we conclude that there is no ethical violation.