116 N.J.L.J. 225
August 15, 1985
Requiring Release of Civil
Claims as Prerequisite for
Dismissal of Municipal Court Complaint
The law firm represents a corporation providing security guard
services to a governmental authority under the terms of a public
contract. In connection therewith, it represents guards in
municipal court who are the subject of criminal complaints.
Typically, these complaints take the form of allegations of simple assault. Additionally, each case often involves a cross complaint by the guard against the other party, also in the nature of simple assault.
All complaints that are filed by the guard or the other party are done so at their own initiative and prior to the law firm's involvement. The firm does not suggest, counsel or initiate the filing of any complaints or cross complaints, but, rather, is contacted by the guard service to represent the guards after the complaints have been signed and the summons issued.
Frequently, at the time that the matter reaches trial, the emotions of the parties have dissipated and settlement by mutual dismissal of the cross complaints is acceptable to both parties. In circumstances where the adversaries approach the law firm regarding the possibility of such a settlement, it has been the policy of that office, as per the directives of its client, to require an exchange of releases by the parties prior to dismissal of the complaints. An appropriate release is executed by the security guard involved running in favor of the other party and the party executes a release running in favor of the guard, the corporation employing the guard, and the governmental authority for whom the services were rendered.
The inquiry presented to the Committee is whether it is a violation of ethical prohibitions to require the execution of a general release in favor of the guard, the guard service and the governmental authority as a prerequisite to the mutual dismissal of claims in a criminal matter.
We find no ethical violation based on the stated facts. There is no specific rule of Professional Conduct which covers the subject matter. We are not dealing with a situation in which a lawyer participates in, or threatens to present criminal charges to obtain an improper advantage in a civil matter. The prior Code of Professional Responsibility, Rule 7-105(A) entitled "Threatening Criminal Prosecution" provided as follows:
A lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.
In the case now before us, the criminal complaint was filed against a guard who filed a cross complaint. No civil actions were filed by either party.
If the original complainant (who was at all time free to continue his criminal complaint and retain all his rights pertaining to civil suits), desired to effect a mutual dismissal of the "cross complaints", it was his privilege to suggest it, but the cross complainant, having been required to defend against the complaint did nothing wrong in requesting that in addition to an exchange of releases between the complainants, the original complainant must also deliver releases for civil suits in favor of the guard service, and the governmental authority.
For the reasons expressed, we conclude that there is no ethical violation.