NYSBA Ethics Opinion 28

NYSBA Ethics Opinion 28

3.10.1966

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #28 – 03/10/1966 (16-65)

Topic: General Release by Minor Defendant
Digest: Counsel must determine if it is in best interest of minor defendant to execute a general release to have criminal charges dropped
Canon: None

QUESTION

l. Hay defense counsel, representing a minor defendant on a criminal charge, properly and ethically advise the minor defendant and/or his parents to execute and deliver their general releases to the complainant under the following circumstances: (a) The complain ant has offered to withdraw or consent to dismissal without prejudice of the criminal charge conditioned upon receipt of such releases; (b) the releases are intended to release the complainant from possible claims for damages without payment of any moneys to the minor and/or the parents; (c) the releases shall be delivered and the criminal charge withdrawn without a compromise order to be made by the Court.
2. Would the situation be different whether or not the defense counsel has been retained to represent the minor in a civil action as well as the criminal case?
3. Is defense counsel subsequently subject to censure in the event that the minor repudiates the releases and sues for damages upon his attaining majority?

OPINION

If defense counsel is of the opinion that it is to the best interest of the minor that the proceedings be dropped, either because the outcome is unpredictable, or because he believes that the minor might suffer irreparable injury from undergoing a criminal trial even though acquitted, or for other cause, it would not be improper to advise the minor and his parents to execute the releases. However, the withdrawal of the complaint or dismissal without prejudice should be subject to the approval of the Court in which the criminal charge is pending, (Opinion No. 207, The Association of the Bar of the City of New York). Furthermore, to deliver or advise the execution of a release by or on behalf of a minor without complying with the requirements of Article 12 of the Civil Practice Law and Rules would be improper professional conduct.  (See Hatter of Shields, 16 App. Div. (2) 5O.)  Defense counsel should, of course, explain fully to the minor and his parents that their respective rights and liabilities are and the reasons for his advice.  It makes no difference whether or not defense counsel has been retained to represent the minor in the civil action as well as in the criminal proceeding.