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Unholy Alliance: Perceptions of Influence in Insurance Fraud Prosecutions and the Need for Real Safeguards

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 2 Dated: Winter 2008 Pages: 363-428
Aviva Abramovsky
Date Published
66 pages
This article examines the working relationship between the insurance industry and prosecutors in the insurance fraud prosecution context.
The assessment of private funds on the insurance industry to assist in the prosecution of crimes primarily affecting that industry’s interests requires that the potential of conflicting interests arising under such a system be addressed. Such a system increases the risk that lawyers representing interests adverse to the funding industry will come within the purview of those funded prosecutorial agencies to their perceived and perhaps actual detriment. To alleviate fears of “targeting,” inappropriate influence, and special access, some form of preventative measure is appropriate. In the absence of such measures, the regulation of lawyers will increasingly become the domain of the criminal law and lawyers’ tactical judgments subject to the scrutiny of the prosecution. Unlike most other criminal prosecutions, insurance fraud prosecutions are increasingly being brought by prosecutors funded separately from the State’s general revenues. These prosecutors’ salaries are either entirely or in large part paid by monies obtained by direct assessments on the insurance industry. The prosecutor’s office is seen as representing the people. As such it is important to examine these new institutionalized structures and their entwinement with private interests as potential sources of risk to the notion of impartial justice. This article argues that specialized funding of investigators and prosecutors by industry assessment has led to perceptions of industry influence on the impartiality of the prosecutor. The article reviews the capacity of perceived influence to chill tort plaintiff lawyer activity. It concludes that the potential for conflict exists and is sufficient to warrant due process consideration.


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