Criminal Charges, Civil Settlements, and Legal Ethics

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 [...]