Criminal law can be implicated in civil lawsuits between individuals. This article focuses on what a lawyer in Minnesota can do to avoid criminal charges from being filed against his client where that client's conduct may have not only lead to a civil lawsuit but also might carry criminal consequences. First, it is imperative that any civil lawyer attempting to avoid criminal charges from being filed against their client to contact an experienced Minnesota criminal defense lawyer to evaluate the potential for criminal charges and to assist in developing an effective settlement strategy to thwart a prosecutor's ability to pursue criminal charges.Contrary to popular belief, neither the ABA Model Rules nor the Minnesota Rules of Professional Conduct explicitly prohibit the use of a "forbear instigating prosecution" clause in a settlement agreement. Still, a lawyer must be wary of the professional ethics rules, as well as the criminal laws of the relevant jurisdiction.In 1992, the American Bar Association Standing Committee on Professional Ethics issued a formal opinion in which it analyzed the issue of whether a plaintiff can threatened prosecution in a civil lawsuit. The ABA Committee opined that the Rules of Professional Conduct do not prohibit a lawyer from using the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for a client, provided that:(1) the criminal matter is related to the client's civil claim(2) the lawyer has a well-founded belief that both the civil claim and the criminal charges are warranted by the law and the facts; and (3) the lawyer does not attempt to exert or suggest improper influence over the criminal process.Since a threat of criminal prosecution may be permitted under these circumstances, the ABA Committee further opined that under these same circumstances, a lawyer is permitted to enter a settlement agreement in which his client agrees to refrain from instigating prosecution.Writing on behalf of the Minnesota Office of Lawyers Professional Responsibility in an article from 1998, the First Assistant Director stated: "Although the Minnesota Lawyers Board has not formally adopted ABA Opinion 92-363, the Director's Office does use the opinion in analyzing complaints alleging threats of criminal prosecution in civil matters." The article analyzed a number of scenarios and discussed whether the conduct was ethically permissible in light of "the ABA analysis." The article, however, stopped short of stating that the Minnesota Office of Lawyers Professional Responsibility would reach the same conclusions.One reason the Minnesota office may not have formally adopted the ABA Opinion is because the ABA Opinion permitting threats of criminal prosecution is based upon the Model Penal Code, which defines crimes relating to this type of conduct differently from Minnesota. The Model Penal Code does not criminalize threats of prosecution where the actor is seeking restitution.Criminal law in Minnesota is not so clear on the subject.A Minnesota lawyer representing a potential criminal defendant should consider the crime of tampering with a witness before negotiating a confidentiality clause or a "refrain from prosecution" clause. A person commits the crime of witness tampering if that person uses coercion "to dissuade a witness from providing information to law enforcement concerning a crime."Assuming a lawyer is able to navigate successfully Minnesota's criminal code in negotiating a settlement agreement provision to refrain from prosecution, he may find that risking criminal conduct and ethical sanctions were not worth the effort.First, a lawyer must be cognizant that certain crimes, e.g., crimes against certain financial institutions, are subject to mandatory reporting acts in which the victim is required to report the crime to law enforcement. Second, the lawyer must consider what remedy (if any) can be used if the victimized party violates the agreement and reports the conduct to law enforcement after collecting on her civil claim. Third, a lawyer can never guarantee that a criminal prosecution will not materialize. A prosecutor may pursue a criminal action with or without the consent of the victim. A prosecutor can subpoena a victim to a grand jury proceeding or to testify in a criminal trial, where the victim who offers untruthful testimony is subject to prosecution for perjury.In sum, lawyers who choose to negotiate criminal aspects of a civil claim must be careful to stay within the bounds of the relevant jurisdiction's criminal code and must advise their clients that there are no fail-safe methods to avoid prosecution.