IN RE: PETITION TO STAY THEEFFECTIVENESS OF FORMALETHICS OPINION 2017-F-163
Session: May 30, 2019
Tennessee District Attorneys General Conference
("TNDAGC") filed with this Court a petition to
vacate Formal Ethics Opinion 2017-F-163 ("Opinion")
issued by the Board of Professional Responsibility
("Board") regarding ethical considerations for
prosecutors under Rule 3.8(d) of the Tennessee Rules of
Professional Conduct. The TNDAGC also requested that the
Court stay the effectiveness of the Opinion pending review.
This Court determined that a full and deliberate review of
the issues was necessary and granted a stay of the
effectiveness of the Opinion. Based on our review, we decline
to interpret a prosecutor's ethical duty under Rule
3.8(d) as being more expansive than one's legal
obligations under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, or that
"timely" disclosure of the material should be
interpreted as "as soon as reasonably practicable."
Accordingly, we vacate Formal Ethics Opinion 2017-F-163 of
the Board of Professional Responsibility. We also take this
opportunity to interpret Rule 3.8(d) as coextensive in scope
with a prosecutor's legal obligations under
Brady and its progeny, as explained in this opinion.
Ethics Opinion 2017-F-163 of the Board of Professional
S. Faughnan, for the petitioner, Tennessee District Attorneys
Jane Leach Garrett, Chief Disciplinary Counsel, for the
respondent, Board of Professional Responsibility.
Rosenstein, Deputy Attorney General; Donald Q. Cochran,
United States Attorney for the Middle District of Tennessee;
D. Michael Dunavant, United States Attorney for the Western
District of Tennessee; and J. Douglas Overbey, United States
Attorney for the Eastern District of Tennessee, for amicus
curiae, the United States of America.
Stephen Ross Johnson and Elizabeth Ford, Knoxville,
Tennessee; Jonathan Harwell and Henry Martin, Nashville,
Tennessee; and Doris Randle-Holt, Memphis, Tennessee, for
amici curiae, the Tennessee Association of Criminal Defense
Lawyers, the National Association of Criminal Defense
Lawyers, and the three Federal Public Defenders for the
Eastern, Middle, and Western Districts of Tennessee.
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; and Zachary T.
Hinkle, Assistant Attorney General, for amicus curiae, the
Attorney General & Reporter of the State of Tennessee.
Jeffrey S. Bivins, C.J., delivered the opinion of the Court,
in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and
Roger A. Page, JJ., joined.
JEFFREY S. BIVINS, CHIEF JUSTICE
and Procedural Background
March 15, 2018, the Board issued Formal Ethics Opinion
2017-F-163 to clarify the language in Rule
3.8(d) of the Tennessee Rules of Professional
Conduct, which pertains to a prosecutor's duty of
disclosure of information to a criminal defendant. The
Opinion states that the Board "has been requested to
issue a Formal Ethics Opinion regarding the Prosecutors'
Ethical Obligations to Disclose Information Favorable to the
Defense." The Opinion addressed the following two
I. Does a prosecutor's duty under RPC 3.8(d) to disclose
to the defense "all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or
mitigate the offense" and in connection with sentencing,
"all unprivileged mitigating information known to the
prosecutor" extend beyond the "material"
standard as construed by federal or state constitutional
II. What constitutes "timely disclosure" under RPC
Opinion then provided the following answers in conclusion:
Tennessee Rule of Professional Conduct 3.8(d) is a separate
ethical obligation of prosecutors and was not meant to be
coextensive with a prosecutor's legal disclosure
obligations. This ethical duty is separate from disclosure
obligations imposed under the Constitution, statutes,
procedural rules, court rules, or court orders. A
prosecutor's ethical duty to disclose information
favorable to the defense is broader than and extends beyond
Brady. Once a prosecutor knows of evidence and
information that tends to negate the guilt of the accused, or
mitigates the offense, or otherwise falls within RPC
3.8(d)'s disclosure requirement, the prosecutor
ordinarily must disclose it as soon as reasonably
4, 2018, following the Board's adoption of the Opinion,
the United States Attorneys for the Middle, Western, and
Eastern Districts of Tennessee requested reconsideration and
withdrawal of the Opinion. The U.S. Attorneys requested
permission to appear before the Board at its September 2018
meeting. Subsequently, the Board requested written statements
from the Tennessee District Public Defenders Conference and
the U.S. Federal Public Defenders and asked for a
representative from these entities to speak at the September
2018 Board meeting. Additionally, the Board allowed
presentations at the September 2018 Board meeting from
representatives of the TNDAGC, the U.S. Attorneys for the
Middle, Western, and Eastern Districts of Tennessee, and the
Tennessee Association of Criminal Defense Lawyers. Following
the presentations at the September 2018 Board meeting, the
Board appointed a committee to review the Opinion and make a
recommendation to the Board. On October 31, 2018, four
members of the committee voted to recommend to the Board that
the Opinion not be altered or rescinded. One member of the
committee did not concur in the recommendation and instead
would have recommended that the Board rescind the Opinion.
October 23, 2018, the TNDAGC filed with this Court a petition
to "stay the effectiveness of Formal Ethics Opinion
2017-F-163," pending the Board's review of the
Opinion following the public hearing held on September 14,
2018. The TNDAGC requested that this Court stay the
effectiveness of the Opinion until June 1, 2019, or upon the
conclusion of the Board's evaluation process, whichever
were to come sooner. The Board filed a response on November
5, 2018, stating that it would "hold in abeyance any
recommended disposition by a Hearing Committee Member or the
Board of any disciplinary complaint filed against a
prosecutor wherein Formal Ethics Opinion 2017-F-163 is
referenced in the complaint" until the Board
reconsidered the Opinion.
November 8, 2018, this Court granted the petition to stay as
requested by the TNDAGC. On December 17, 2018, the Board
filed a supplemental response, informing the Court that,
"[a]t the Board's meeting on December 14, 2018, the
full Board considered the Ethics Committee's Report and
Recommendation and voted to not alter or rescind Formal
Ethics Opinion 2017-F-163." The TNDAGC filed a reply on
December 19, 2018, informing the Court of its intent to file
a Petition to Vacate the Formal Ethics Opinion and asking the
Court to continue to stay the effectiveness of the Opinion.
January 15, 2019, the TNDAGC filed a petition to vacate the
Opinion 2017-F-163 and renewed its request that the Court
stay the effectiveness of the Opinion. On February 4, 2019,
this Court determined that public interest required a full
and deliberate review of the issues raised, which would be
furthered by delaying the effective date of the Opinion
pending adjudication of this matter. Accordingly, this Court
granted the TNDAGC's motion for stay, ordered additional
briefing, and heard oral arguments on the petition to vacate.
Court stated in In re Youngblood,
This Court's authority to consider the validity of formal
ethics opinions is implicit in its rules and prior decisions.
Rule 9 provides for the establishment and operation of the
Board, which, as indicated by its full name, the Board of
Professional Responsibility of the Supreme Court of
Tennessee, is an agency of this Court. Tenn. R. Sup. Ct. 9,
§ 5. The responsibilities of the Board include the duty
to "issue and publish Formal Ethics Opinions on proper
professional conduct[.]" Tenn. R. Sup. Ct. 9, §
26.4(a). Jurisdiction to review these ethics opinions is
grounded in the Court's inherent power to review the
actions of its boards, commissions, and other agencies. . . .
. . . .
. . . This power to review is inherent in the grant from the
sovereign to the Court, and the Court reaffirms its original
and exclusive authority to formulate and enforce rules
governing the practice of law. That authority includes ...