Civil Compromise
Posted December/14/2009
CIVIL COMPROMISE CAN BE A GREAT ROUTE TO PREVENT CRIMINAL PROSECUTION
Oregon law offers a framework for a resourceful defense attorney and a pragmatic client to accomplish dismissal of a criminal charge, even where the prosecuting attorney objects to the case being dismissed.
In a situation where the criminal charge encompasses alleged harm to another individual or business entity, the defense attorney has the opportunity to negotiate a settlement with the alleged defendant, and follow up with a motion to dismiss the case as a Civil Compromise pursuant to ORS 135.703 to 135.709. When insurance coverage is available, typically in an automobile accident scenario, it is best to coordinate negotiations with the defendant’s insurance company. The client should be aware that the insurance company’s framework is limited to the negotiation of a civil settlement. The focus of the Portland criminal defense attorney is on avoiding criminal consequences to the client. In many situations, the criminal defense attorney will collaborate with the insurance company for the benefit of the client.
The question often arises as to what the appropriate amount should be for a Civil Compromise. The simple answer is that whatever is acceptable to the criminally accused and the alleged defendant is the appropriate amount. Savvy defense attorneys work hard to advance the client’s interests and nail down a Civil Compromise agreement at minimal expense to the client. Of course, from time to time we encounter alleged defendants who are excessively greedy and who attempt to use the Civil Compromise as a way to unjustly enrich themselves at the client’s expense. Nevertheless, an experienced and capable defense attorney is often able to work out a win-win situation that advances the legitimate interests of all concerned.
The role of the defense attorney in the negotiation of a Civil Compromise is vitally important. In the first instance, it is up to the defense attorney to recognize situations where a Civil Compromise is even possible. The defense attorney (or the defense attorney’s investigator) will establish contact with the alleged defendant or the alleged defendant’s attorney. While the criminal defendant is typically prohibited from having direct or indirect contact with the alleged defendant, there is no such restraint on the defense attorney. In order for the criminal matter to be dismissed, the defense attorney will need to prepare the appropriate documentation and appear on the client’s behalf at a hearing in court. Advocacy on behalf of the client, in open court, can seal the deal and accomplish dismissal of the client’s criminal charge. The final step will be to file a motion to set aside records associated with the arrest and prosecution, pursuant to ORS 137.225 (commonly referred to as “expungement”).
The prosecuting attorney plays a very different role in a Civil Compromise situation. The prosecuting attorney is not the personal attorney for the alleged defendant, and ethical standards prohibit the prosecutor from recommending that the alleged defendant abstains from participating in settlement negotiations. Moreover, once there is a settlement in place between the defendant and the alleged defendant, the prosecutor cannot prevent the matter from being dismissed as a Civil Compromise. The ultimate decision as to whether to grant a dismissal of the charges rests with the judge. The prosecuting attorney can object to the matter being dismissed, but frequently the prosecutor’s wishes are disregarded by the court.
We have assisted many clients with accomplishing dismissal of their criminal charges in accordance with Oregon’s Civil Compromise Law. Please contact us directly for further information at (503) 827-8092.
