Does a Prosecutor or Criminal Defense Lawyer have an obligation to ask for a STAY of Civil Action pending a resolution of Criminal Charges?
The answer should be obvious, YES.
However, this is far from the reality. In fact the prevailing opinion from DA’s is: “It’s your headache”. Even more frightening is the fact that more than a few Prosecutors and District Attorneys are not even aware of the fact they have both the standing and authority to walk into a civil courtroom and DEMAND A STAY.
Why is this important to every Defendant who finds themselves in the crosshairs of both a criminal prosecution and a civil complaint?
Because you cannot remotely begin to defend both matters without sacrificing your constitutional rights.
As things stand now, Prosecutors and DA’s wait in the wings ready to capitalize on this dilemma and reap the benefits of the civil discovery process while the targeted Defendant on the advice of their criminal counsel is forced to remain silent waiting for their day in a criminal courtroom.
This is not an isolated issue and is happening more and more as Plaintiffs’ civil counsel realize they can use a pending criminal charge to pressure insurance companies into forking over huge settlements rather than face or risk the potential fallout from a criminal prosecution.
As this issue becomes more commonplace, lawyers who seek to protect their client’s rights in both venues are finding few safe havens and little sympathy for their client’s predicament, leaving criminal defense lawyers in a no win situation, and the courts to serve as the “Alamo” where a lawyer is forced into making a last stand.
It can be argued that to date Prosecutors have been given a pass for ignoring the ethical considerations involved by failing to preserve the integrity of a criminal prosecution and a Defendant’s presumption of innocence. Considerations which don’t appear on the Plaintiffs’ radar screen in their effort to obtain a monetary settlement.
While there is no easy approach or answer, one thing is certain. There is strength in numbers. When one criminal defense lawyer elects to stand down and allows their client to be steamrolled by other competing interests, all Defendants suffer from the precedent created by that lawyers decision to go quietly into the night…
Simply stated this is not the time for lawyers faced with this two front attack upon their client to take a defensive posture, leaving Judges to conclude: “If they don’t care enough to challenge it, who am I to interfere?”
The Law Offices of David Jay Glassman has taken the lead in preserving the rights of criminal defendants without sacrificing their ability to litigate the related civil matter filed against them.