Restraining the Prosecutor: Restrictions on Threatening Prosecution for Civil Ends

Prosecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) specifically prohibits prosecution for the purpose of gaining an advantage in a civil matter, but the Model Rules of Professional Conduct (Model Rules) do not carry forward the Code's prohibition. This Article reviews the questions raised by a prosecutor's bargaining for a waiver of civil liability and examines the response of courts and bar ethics committees. It concludes that there are compelling arguments for amending the Model Rules to include a rule similar to the Code's prohibition of prosecution for the purpose of gaining an advantage in a civil matter. Although courts seldom uphold waivers obtained by prosecutors when they reach the courts, ethical restrictions are also an effective way to protect individuals from this inappropriate activity. The Model Rules, therefore, should contain a provision that makes clear that prosecutors should not bargain for waivers of civil liability.