Avoiding Criminal Charges in Minnesota

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					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

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