The domestic violence case against Carolina Panther Greg Hardy was dismissed this week. According to the Charlotte Observer, a principal reason was that the alleged victim, Hardy’s ex-girlfriend, refused to cooperate and avoided service of a subpoena. Prosecutors also told the judge that the alleged victim had reached a civil settlement with Hardy. To be clear, no one has said that the settlement agreement required the alleged victim not to cooperate. But could the agreement contain such a provision?
Not ethically. Rule 3.4 provides that a lawyer shall not “obstruct another party’s access to evidence,” and specifically, shall not “counsel or assist a witness to hide or leave the jurisdiction for the purpose of being unavailable as a witness.” Several ethics opinions clarify and amplify the rule.
Victims may agree to support dismissal or a favorable plea agreement, but may not agree to refuse to testify or to withhold evidence. RPC 225 addresses the interplay of civil and criminal proceedings. It indicates that it would be proper for Hardy’s lawyers to discuss the settlement of the alleged victim’s civil claims in conjunction with a discussion of the alleged victim’s cooperation in obtaining a plea agreement or a dismissal of the charges against Hardy. But any civil settlement could not ethically include:
- “[M]aking the settlement of the . . . civil claims contingent upon the content of the testimony of the [alleged victim] or upon the outcome of the [criminal] case.”
- Any terms that “result in a witness’s refusal to testify or the withholding of factual information from the court.” 98 FEO 2 (ruling that lawyers generally may not advise their clients to evade service of process or explain how to do so).
The idea that an alleged victim may offer some assistance in a defendant’s criminal case in exchange for a favorable civil settlement is also reflected in 98 FEO 19 (stating that a victim’s attorney ethically may “propos[e] that [a] [v]ictim will acquiesce to [a favorable] plea agreement in exchange for a confession of judgment from [a defendant]”). That opinion also contains cautionary language to the effect that a victim’s lawyer “may not imply that the lawyer has the ability to interfere with the due administration of justice and the criminal proceedings or that the client will enter into any agreement to falsify evidence.”
Victims may agree not to report crimes. Although not directly relevant, it is also worth noting 2008 FEO 15, which provides that so long as “the agreement does not constitute the criminal offense of compounding a crime and is not otherwise illegal, and does not contemplate the fabrication, concealment, or destruction of evidence, a lawyer may participate in a settlement agreement of a civil claim that includes a non-reporting provision prohibiting the plaintiff from reporting the defendant’s conduct to law enforcement authorities.” That opinion, too, reminds attorneys to avoid involvement in the obstruction of justice, saying that lawyers “must also be careful to avoid any implication that the settlement includes the client’s agreement to testify falsely or to evade a subpoena in a criminal proceeding should criminal charges subsequently be brought by the authorities. Such conduct clearly violates the prohibitions in Rule 3.4(a) and (b) on counseling or assisting another to destroy or hide evidence, testify falsely, or avoid serving as a witness.”
The bottom line. Civil settlement agreements generally may be conditioned on:
- A victim’s non-reporting of a crime
- A victim’s support for a favorable plea agreement
- A victim’s support for a dismissal
They may not be conditioned on:
- The content of a victim’s testimony
- The outcome of the criminal case
- A victim’s refusal to testify
- A victim’s evasion of service
The victim also may not receive more compensation than he or she is entitled to under applicable civil law. In other words, the victim may not use the threat of reporting a crime or opposing a plea agreement to extort a greater settlement than he or she deserves. 98 FEO 19.
Finally, when there are negotiations between an alleged victim and a defendant, the prosecutor should be notified. RPC 225 (stating that “the district attorney responsible for the case should be advised of the discussions”).