Can a district attorney offer a plea bargain conditioned on the defendant waiving civil remedies against the arresting officers or resolving a related civil forfeiture?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A district attorney plans to offer a plea bargain in a pending criminal prosecution conditioned on one or both of: the defendant's waiver of civil remedies against the arresting officers and the governmental entity that employs them, or the simultaneous resolution of a civil forfeiture proceeding the district attorney is bringing against the defendant. The opinion asks whether the district attorney may make such an offer, and answers "Yes, qualified."
The opinion applies Oregon RPC 3.4(g), which bars threatening to present criminal charges to gain an advantage in a civil matter. It concludes the rule does not apply here because the criminal charges are already pending, so the offer is not a threat to present charges. The opinion then considers Oregon RPC 8.4(a)(4) (conduct prejudicial to the administration of justice) and concludes that, while a simultaneous-settlement offer could theoretically be prejudicial, nothing in these facts shows such conduct; the offer is not per se prejudicial and could in fact produce the most just result by resolving all connected matters at once.
A footnote sets the qualification: citing the disciplinary case law, the opinion states that if the district attorney were prosecuting solely to obtain a civil release of the arresting officers, or if there were no probable cause to support the charge, the conduct would violate both Oregon RPC 8.4(a)(4) and Oregon RPC 3.8, which requires a prosecutor to refrain from prosecuting charges not supported by probable cause and to make timely disclosure of exculpatory and mitigating information.
In practice
The opinion holds that, under the Oregon rules as they stood at the time, the conditioned plea offer is permissible because the charges are already pending and the offer is not inherently prejudicial to the administration of justice. Per the opinion, the analysis turns on the prosecutor's good faith: the offer becomes improper under RPC 8.4(a)(4) and 3.8 if the prosecution lacks probable cause or is being maintained solely to secure the civil release. Verify the current text of Oregon RPC 3.4, 3.8, and 8.4 before relying on any specific point.
Common questions
Q: Can a prosecutor condition a plea deal on the defendant dropping civil claims against the police?
A: Yes, qualified. The opinion concludes the offer is not a threat under Oregon RPC 3.4(g) because the charges are already pending, and is not per se prejudicial to the administration of justice.
Q: Why doesn't the rule against threatening criminal charges apply?
A: Per the opinion, Oregon RPC 3.4(g) addresses threatening to present charges; here the charges are already pending, so there is no threat to present them.
Q: When would such an offer cross the line?
A: The opinion states that if the prosecution lacked probable cause, or was pursued solely to obtain the civil release of the arresting officers, the conduct would violate both Oregon RPC 8.4(a)(4) and Oregon RPC 3.8.
Background and rules framework
The opinion interprets Oregon RPC 3.4(g) (threatening criminal charges to gain civil advantage), Oregon RPC 8.4(a)(4) (conduct prejudicial to the administration of justice), and Oregon RPC 3.8 (special responsibilities of a prosecutor), corresponding to Model Rules 3.8 and 8.4.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 3.4(g) (threatening criminal charges to gain civil advantage)
- Oregon RPC 3.8 / Model Rule 3.8 (prosecutor's special responsibilities)
- Oregon RPC 8.4(a)(4) / Model Rule 8.4 (conduct prejudicial to the administration of justice)
Cases:
- In re Haws, 310 Or 741, 801 P2d 818 (1990)
- In re Leonhardt, 324 Or 498, 930 P2d 844 (1997)
- In re Gustafson, 327 Or 636, 968 P2d 367 (1998)
Other opinions cited:
- Washington Advisory Op. No. 1135 (1987)
See also
- OSB Ethics Op. 2005-89: Prosecutors and Civil Compromise
- OSB Ethics Op. 2005-14: Deputy DA Representing Private Parties
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-113.pdf
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