08/23/2019
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 30, 2019 Session
IN RE: PETITION TO STAY THE EFFECTIVENESS OF FORMAL
ETHICS OPINION 2017-F-163
No. M2018-01932-SC-BAR-BP
The 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.
Formal Ethics Opinion 2017-F-163 of the Board of Professional Responsibility
Vacated
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.
Brian S. Faughnan, for the petitioner, Tennessee District Attorneys General Conference.
Sandra Jane Leach Garrett, Chief Disciplinary Counsel, for the respondent, Board of
Professional Responsibility.
Rod J. 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.
OPINION
Factual and Procedural Background
On March 15, 2018, the Board issued Formal Ethics Opinion 2017-F-163 to
clarify the language in Rule 3.8(d)1 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 questions:
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 decisions?
II. What constitutes “timely disclosure” under RPC 3.8(d)?
1
The text of Rule 3.8(d) states that a
prosecutor in a criminal case . . . shall make timely disclosure to the defense of all
evidence or information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information known to the
prosecutor, except when the prosecutor is relieved of this responsibility by a protective
order of the tribunal[.]
Tenn. Sup. Ct. R. 8, RPC 3.8(d).
2
The 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 practicable.
On June 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.
On 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.
On 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
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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.
On 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.
Analysis
As this 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 the review of formal ethics opinions issued by the Board.
895 S.W.2d 322, 325 (Tenn. 1995). Furthermore, “The Court may in its discretion, upon
application or upon its own initiative, consider the amendment, revision, or repeal of its
rules and any interpretation or application thereof by its agencies.” Id. at 326.
The TNDAGC objects to both of the conclusions provided in the Opinion: first,
that the prosecutor has an ethical duty extending beyond one’s constitutional obligations
under Brady and its progeny; and second, that the prosecutor must disclose that
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information “as soon as reasonably practicable.” We will address each of the Opinion’s
conclusions in turn.
History of Rule 3.8(d)
An overview of the history of Rule 3.8(d) will be helpful in our review of the
Opinion at issue. On October 9, 2000, the Tennessee Bar Association (“TBA”) filed with
this Court a petition to adopt the Tennessee Rules of Professional Conduct (“Rules”) to
replace what was then the Tennessee Code of Professional Responsibility. Proposed
Tennessee Rules of Professional Conduct, M2000-02416-SC-RL-RL. Prior to 2000, the
rule provision that addressed a prosecutor’s ethical responsibilities was EC 7-13, which
provided in part:
The responsibility of a public prosecutor differs from that of the usual
advocate; his duty is to seek justice, not merely to convict. . . . With
respect to evidence and witnesses, the prosecutor has responsibilities
different from those of a lawyer in private practice; the prosecutor should
make timely disclosure to the defense of available evidence, known to him,
that tends to negate the guilt of the accused, mitigate the degree of the
offense, or reduce the punishment. Further, a prosecutor should not
intentionally avoid pursuit of evidence merely because he believes it will
damage the prosecutor’s case or aid the accused.
Tenn. Sup. Ct. R. 8, EC 7-13 (2000).
The proposed text for Rule 3.8(d), as provided in an exhibit to the TBA’s petition,
was verbatim what the Rule provides today and was identical to the corresponding
American Bar Association (“ABA”) Model Rule of Professional Conduct 3.8(d). The
Court solicited comments from the bench, bar, and public on November 28, 2000. Of
relevance to this case, the Court received two comments objecting to the language of
Rule 3.8(d). The Tennessee District Attorneys General Conference worded the objection
as follows:
Proposed section (d) of this rule appears to track the Brady Rule
requiring the disclosure of evidence known to the prosecutor which tends to
negate the guilt of the accused or mitigate the offense, but goes further by
requiring any mitigating evidence to be presented to the tribunal as well as
defense counsel at sentencing. This goes beyond the Brady requirement.
Prosecutors should be required to follow Brady by providing mitigating
evidence to the defense lawyer who will then make the decision on whether
to present it to the tribunal. Ethical rules should not be used to alter a
lawyer’s legal obligation.
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Further, this amendment requirement is unnecessary. A prosecutor
should not be subjected to ethical sanctions simply because the prosecutor
presented it to the defense but failed to present it to the tribunal. This
proposed rule would in effect create an additional right for defendants
beyond those already afforded them by law.
The United States Attorneys for the Eastern, Middle, and Western Districts of Tennessee
also objected on this ground.2 The Board did not raise any objection to proposed Rule
3.8(d). In the TBA’s Revised Final Report of its proposed draft of the proposed Rules, it
modified proposed Rule 3.8(d) to state that a prosecutor in a criminal matter shall, “in
connection with sentencing, disclose to the defense and, if the defendant is proceeding
pro se, to the tribunal all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective order of the
tribunal.” (Emphasis added to show change). In its final report, the TBA included the
following comment regarding the modification:
In response to a comment from the [TNDAGC], and with its concurrence,
the Committee has amended Paragraph (d) so that the disclosure of
exculpatory evidence need only be made to the defense except when a
defendant is proceeding pro se. In such a case, for the protection of the pro
se defendant, the disclosure [at sentencing] must be made to both the
defendant and the tribunal.
Thus, the TBA, in response to the objections above, changed the tribunal disclosure
requirement to apply only to pro se defendants. Subsequently, the United States
Attorneys for the Eastern, Middle, and Western Districts filed comments to the TBA’s
Final Revised Report, in which they stated the following as to the TBA’s proposed
revision to Rule 3.8(d): “Rule 3.8(d) as now proposed by the Committee essentially
tracks the rule announced in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963), requiring disclosure of certain exculpatory material and, accordingly, we
2
The United States Attorneys’ objection provided:
Rule 3.8(d) essentially tracks the ruling announced in Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963), requiring disclosure of certain exculpatory material.
The proposed rule, however, illogically and unnecessarily expands the Brady rule in one
objectionable respect by requiring the mitigating evidence be disclosed not only to the
defense attorney but also to the tribunal in connection with sentencing. The well-
established standards under Brady already require that such information be disclosed to
defense attorneys. The decision as to whether the client’s interest is served by presenting
the information at sentencing is best left to the attorney. The proposed rule is a
substantial change in well-established standards, and such changes are best left to the
courts, not in legislating rules but in deciding cases, and to the legislature. Restated, the
Rules of Professional Conduct should not be used to make fundamental changes in
prosecutorial legal obligations.
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do not object.” The Court enacted its new Rules on August 27, 2002, adopting
substantially the same language as that provided in the TBA’s Revised Final Report.
In 2010, again upon the petition of the TBA, this Court adopted comprehensive
revisions to the Tennessee Rules of Professional Conduct. At that time, Rule 3.8(d) was
revised3 to the original version proposed in 2000, which is identical to the current
language of the Rule.
Prosecutor’s Duty to Disclose
With this backdrop in mind, we review the two conclusions provided by the Board
in its Opinion. The TNDAGC first challenges the Opinion’s requirement that a
prosecutor must disclose “information favorable to the defense,” rather than “information
known to the prosecutor that tends to negate the guilt of the accused or mitigates the
offense,” as provided in Rule 3.8(d). The Board has conceded that the phrase
“information favorable to the defense” is different from the language used in Rule 3.8(d)
and thus potentially confusing. The Board, accordingly, expresses its willingness to
replace all references of “information favorable to the defense” with “information known
to the prosecutor that tends to negate the guilt of the accused or mitigates the offense” so
that the Opinion’s language in this regard would be identical to the language used in Rule
3.8(d).
Even with the above language mirroring that in Rule 3.8(d), the Opinion still
provides that the rule provision’s “ethical duty is separate from disclosure obligations
imposed under the Constitution, statutes, procedural rules, court rules, or court orders,”
and that “[a] prosecutor’s ethical duty to disclose information favorable to the defense is
broader than and extends beyond Brady.” Thus, it is necessary to determine further
whether this Court agrees with the Opinion’s interpretation of a prosecutor’s ethical
obligations under Rule 3.8(d).
In Brady, the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87. “The evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S.
667, 682 (1985); see also Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001) (“This Court
has held on several occasions that in order to establish a Brady violation, four elements
must be shown by the defendant: 1) that the defendant requested the information (unless
3
The revision removed “if the defendant is proceeding pro se” from the language of disclosure to
the tribunal at sentencing.
7
the evidence is obviously exculpatory, in which case the State is bound to release the
information whether requested or not); 2) that the State suppressed the information; 3)
that the information was favorable to the accused; and 4) that the information was
material.”).
Tennessee Rule of Criminal Procedure 16 also imposes obligations on a
prosecutor for the disclosure of information to a criminal defendant. Additionally, the
United States Supreme Court has stated in a footnote that “the obligation to disclose
evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or
statutory obligations.” Cone v. Bell, 556 U.S. 449, 470 n.15 (2009) (citing Kyles v.
Whitley, 514 U.S. 419, 437 (1995)). On July 8, 2009, the ABA issued Formal Opinion
09-454 (“ABA Opinion”), titled “Prosecutor’s Duty to Disclose Evidence and
Information Favorable to the Defense.” The ABA Opinion states, in pertinent part,
Rule 3.8(d) of the Model Rules of Professional Conduct requires a
prosecutor to “make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing, [to]
disclose to the defense and to the tribunal all unprivileged mitigating
information known to the prosecutor.” This ethical duty is separate from
disclosure obligations imposed under the Constitution, statutes, procedural
rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who
knows of evidence and information favorable to the defense to disclose it as
soon as reasonably practicable so that the defense can make meaningful use
of it in making such decisions as whether to plead guilty and how to
conduct its investigation. Prosecutors are not further obligated to conduct
searches or investigations for favorable evidence and information of which
they are unaware.
ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 09-454, at 1 (2009). The
Opinion presently at issue adopts much of the same analysis and interpretation of the rule
provision as that provided in the ABA Opinion. The ABA Opinion, however, provides
for a good faith exception, which is not present in the Board’s Opinion. See id. at 6 n.26
(“If the prosecutor knows of the existence of evidence or information relevant to a
criminal prosecution, the prosecutor must disclose it if, viewed objectively, it would tend
to negate the defendant’s guilt. However, a prosecutor’s erroneous judgment that the
evidence was not favorable to the defense should not constitute a violation of the rule if
the prosecutor’s judgment was made in good faith. Cf. Rule 3.8, cmt. [9].”).
The TNDAGC argues that the Board’s unwillingness to provide a good faith
exception makes the Opinion all the more problematic. The Board, in response, states
that it “has no objection to modifying the Opinion to make clear that the ethical
responsibilities created by [Rule] 3.8(d) only apply to ‘information known to the
8
prosecutor’ as opposed to information known to the State and that all the circumstances,
including a prosecutor’s good faith, should be considered in determining a prosecutor’s
compliance with the Rules of Professional Conduct.”
Similarly to the ABA Opinion, several courts have interpreted a prosecutor’s
ethical duty in that jurisdiction to extend beyond the obligations in Brady. See United
States v. Walker, No. 17-cr-00570-EMC-1, 2018 WL 3023518, at *1 (N.D. Cal. June 18,
2018) (“In November 2017, a new California rule of professional conduct went into
effect which goes beyond Brady.”); United States v. Wells, No. 3:13-cr-00008-RRB-
JDR, 2013 WL 4851009, at *4 (D. Alaska Sept. 11, 2013) (“Rule 3.8(b) is more
demanding than the constitutional case law. The rule requires disclosure of evidence or
information favorable to the defense without regard to anticipated impact of the evidence
or information on the trial’s outcome.”); In re Kline, 113 A.3d 202, 210 (D.C. 2015)
(“Thus, to the extent the Rule 3.8 commentary suggests a materiality test, we reject it. We
see no logical reason to base our interpretation about the scope of a prosecutor’s ethical
duties on an ad hoc, after the fact, case by case review of particular criminal
convictions.”); Shultz v. Comm’n for Lawyer Discipline of the State Bar of Tex., No.
55649, 2015 WL 9855916, at *1 (Tex. Bd. of Disciplinary App. Dec. 17, 2015) (“We
hold that the materiality standard under Brady does not apply to Rule 3.09(d). We further
hold that failure to disclose information otherwise required by law to be disclosed,
regardless of intent, constitutes unlawfully obstructing another party’s access to evidence
in violation of Rule 3.04(a).”); In re Disciplinary Action Against Feland, 820 N.W.2d
672, 678 (N.D. 2012) (“A prosecutor’s failure to comply with the duties imposed by Rule
3.8(d) should not be excused merely because, based upon the other evidence presented at
trial, the result in the case would have been the same. A prosecutor’s ethical duty to
disclose all exculpatory evidence to the defense does not vary depending upon the
strength of the other evidence in the case. Accordingly, it has been recognized that a
prosecutor’s ethical obligation of disclosure under Rule 3.8(d) is broader than the duties
imposed by Brady and Rule 16.” (citations omitted)); see also N.Y. State Bar. Ass’n
Comm. on Prof’l Ethics, Formal Op. 2016-3 (2016); Va. State Bar Comm. on Legal
Ethics Op. 1862, (2012).
The Sixth Circuit examined a Brady issue in a federal habeas corpus case from
Tennessee, determining that no Brady violation had occurred but noting that the
prosecutor’s failure to disclose “was a serious professional failing.” Brooks v.
Tennessee, 626 F.3d 878, 892 (6th Cir. 2010). The court stated, “Nevertheless, the Brady
standard for materiality is less demanding than the ethical obligations imposed on a
prosecutor.” Id. (citation omitted). However, the Sixth Circuit relied on the Supreme
Court’s decision in Cone v. Bell, which stated in a footnote that a prosecutor’s obligation
“may arise more broadly under a prosecutor’s ethical or statutory obligations” than what
is provided under Brady and its progeny. Cone, 556 U.S. at 470 n.15 (emphasis added).
9
Other courts have interpreted their ethical rules as being coextensive with Brady
obligations, mainly based on public policy reasons. See, e.g., In re Att’y C, 47 P.3d
1167, 1171 (Colo. 2002) (“Hence, the language of Crim. P. 16(I)(a)(2), Rule 3.8(d), and
ABA Standard 3-3.11(a) is substantially identical. We have explicitly adopted a
materiality standard with respect to our procedural rules, and we are disinclined to
impose inconsistent obligations upon prosecutors. We therefore also adopt a materiality
standard as to the latter, such that we read Rule 3.8(d) as containing a requirement that a
prosecutor disclose exculpatory, outcome-determinative evidence that tends to negate the
guilt or mitigate the punishment of the accused.”); Disciplinary Counsel v. Kellogg-
Martin, 923 N.E.2d 125, 130 (Ohio 2010) (“We decline to construe DR 7–103(B) as
requiring a greater scope of disclosure than Brady and Crim. R. 16 require. Relator’s
broad interpretation of DR 7–103(B) would threaten prosecutors with professional
discipline for failing to disclose evidence even when the applicable law does not require
disclosure. This holding would in effect expand the scope of discovery currently required
of prosecutors in criminal cases.”); State ex rel. Okla. Bar Ass’n v. Ward, 353 P.3d 509,
520-22 (Okla. 2015) (interpreting their Rule 3.8(d) “in a manner consistent with the
scope of disclosure required by applicable law”); In re Riek, 834 N.W.2d 384, 391 (Wis.
2013) (“Prosecutors should not be subjected to disciplinary proceedings for complying
with legal disclosure obligations. We thus construe the ethical mandate of SCR
20:3.8(f)(1) in a manner consistent with the scope of disclosure required by the United
States Constitution, federal or Wisconsin statutes, and court rules of procedure.”); see
also N.C. Rules of Prof’l Conduct 3.8(d) (“The prosecutor in a criminal case shall . . .
after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or
information required to be disclosed by applicable law, rules of procedure, or court
opinions including all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all unprivileged mitigating
information known to the prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal.” (emphasis added)).
The Louisiana Supreme Court determined in In re Seastrunk, 236 So. 3d 509, 518-
19 (La. 2017), that the duties in its ethical rule, akin to our Rule 3.8(d),4 and the duties in
4
Provided below is the Louisiana rule provision, emphasizing the only portion differing from
Tennessee’s rule provision:
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that the prosecutor knows, or reasonably should know, either tends to negate
the guilt of the accused or mitigates the offense, and, in connection with sentencing,
disclose to the defense and to the tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is relieved of this responsibility by a
protective order of the tribunal[.]
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Brady are coextensive. Noting several other jurisdictions coming to the same conclusion,
the court stated,
As these other courts have found, under conflicting standards, prosecutors
would face uncertainty as to how to proceed, as they could find themselves
in compliance with the standard enumerated in Brady, but in potential
violation of the obligation set forth in Rule 3.8(d). In finding the
obligations coextensive in Rule 3.8(d) and Brady, we decline to impose
inconsistent disclosure obligations upon prosecutors, thereby eliminating
confusion.
A broader interpretation of Rule 3.8(d) also invites the use of an
ethical rule as a tactical weapon in criminal litigation. We find the practical
effect of this potential threat to be poor policy, and, again, decline to adopt
the reasoning proffered by ODC.
Id. at 519 (footnotes omitted).
We agree with the policy interests espoused in the line of cases determining their
ethical rules for prosecutors as coextensive with the constitutional obligations under
Brady. To say that our ethical rules require prosecutors to consider different standards
than their constitutional and legal requirements has the potential to bring about a myriad
of conflicts. See Michael D. Ricciuti, Caroline E. Conti & Paolo G. Corso, Criminal
Discovery: The Clash Between Brady and Ethical Obligations, 51 Suffolk U. L. Rev.
399, 436 (2018) (“[H]aving two competing, mandatory and inconsistent sets of rules
simply means that it remains ambiguous which rule prevails, and allows ethics rules to be
used as tactical weapons in criminal cases and beyond.”). As an example, the United
States’ amicus brief filed with this Court cited a motion filed in a federal district court
requesting that the United States disclose the names of confidential informants and “all
information about the Informant that could be useful to the defense.” The request for
information was not based on the prosecutor’s legal duty under Brady but pursuant to the
prosecutor’s ethical obligations under Rule 3.8(d). See U.S. v. Darden, 353 F. Supp. 3d
697, 722 (M.D. Tenn. 2018). Thus, based on our review, we decline to interpret Rule
3.8(d) as providing any greater ethical obligation upon prosecutors than the constitutional
obligations under Brady and its progeny.
Moreover, the history of Rule 3.8(d) in Tennessee supports our understanding of
the rule provision’s parameters. With the exception of the obligation to disclose the
information to the tribunal at sentencing, no entity, including the Board, indicated
through its comments to the proposed rule that the provision extended a prosecutor’s
ethical duties beyond the scope of a prosecutor’s legal obligations under Brady.
La. R. Prof’l Conduct 3.8(d) (emphasis added).
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Therefore, to now interpret the provision as extending beyond Brady effectively amends
the Rule. For the reasons provided above, we decline to do so. Accordingly, we vacate
section I of the Opinion.
Because we are vacating the Board’s interpretation of Rule 3.8(d) as it relates to
Brady, we take this opportunity to further clarify the rule provision. As the District of
Columbia Court of Appeals addressed in Kline, we recognize that to say the obligations
are completely coextensive could be interpreted to mean that a prosecutor could commit
an ethical violation inadvertently. See Kline, 113 A.3d at 213 (“[A] Brady violation is not
focused on the conduct of the prosecutor, only whether the evidence was potentially
exculpatory and whether the outcome of the trial was seriously affected.”). Conversely,
Rule 3.8(d) states that the ethical duty arises for “information known to the prosecutor
that tends to negate the guilt of the accused or mitigates the offense.” Tenn. Sup. Ct. R.
8, RPC 3.8(d) (emphasis added). We note, however, that although our Rules of
Professional Conduct define “known” as “actual awareness of the fact in question,” the
rule provision also provides that “[a] person’s knowledge may be inferred from
circumstances.” Tenn. Sup. Ct. R. 8, RPC 1.0(f). Furthermore, we agree with the Board
as it provided in its appellate brief that, in reviewing these matters, “all the
circumstances, including a prosecutor’s good faith, should be considered in determining a
prosecutor’s compliance with the Rules of Professional Conduct.”
As noted above, the rule provision requires the disclosure to the defendant and the
tribunal at sentencing, which differs from the obligations under Brady. See Tenn. Sup.
Ct. R. 8, RPC 3.8(d). Thus, with this language being the only exception, we interpret
Rule 3.8(d) as coextensive in scope with Brady and its progeny, recognizing that the
prosecutor also must have knowledge of the information in order to establish an ethical
duty to disclose.
Definition of Timely
The TNDAGC also argues that the Opinion’s interpretation of “timely” as “as
soon as reasonably practicable” runs afoul of the ordinary meaning of “timely” within the
legal context.
The ABA Opinion sets forth the same definition for timely as adopted in the
Board’s Opinion. See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 09-
454, at 6 (“Because the defense can use favorable evidence and information most fully
and effectively the sooner it is received, such evidence or information, once known to the
prosecutor, must be disclosed under Rule 3.8(d) as soon as reasonably practical.”).
Likewise, other courts have adopted the same or similar definition. See, e.g., In re
Larsen, 379 P.3d 1209, 1215 (Utah 2016) (holding that, where its rules of criminal
procedure require disclosure “as soon as practicable,” “Rule 3.8(d) of the Utah Rules of
Professional Conduct requires more than just disclosure; it requires ‘timely disclosure’”);
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People v. Robinson, No. 2010QN040333, 2011 WL 7112937, at *2 (N.Y. Crim. Ct. Dec.
9, 2011) (stating that the New York Rules of Professional Conduct “require a prosecutor
to make timely disclosure at the earliest feasible opportunity”).
Under Brady and its progeny, “as long as a defendant possesses Brady evidence in
time for its effective use, the government has not deprived the defendant of due process
of law simply because it did not produce the evidence sooner.” United States v. Coppa,
267 F.3d 132, 144 (2d Cir. 2001); see also State v. Vaughn, M2006-01659-CCA-R3-CD,
2008 WL 110094, at *6 (Tenn. Crim. App. Jan. 9, 2008) (“Tennessee courts analyze
delayed disclosure differently from outright suppression, focusing on the prejudice of the
delay. In United States v. Blood, the Sixth Circuit stated, ‘Brady generally does not
apply to delayed disclosure of exculpatory information, but only to a complete failure to
disclose and that a [d]elay only violates Brady when the delay itself causes prejudice.’
435 F.3d 612, 627 (6th Cir. 2006).” (other internal citations omitted)).
In United States v. Ruiz, 536 U.S. 622 (2002), the United States Supreme Court
examined whether a prosecutor must disclose material impeachment evidence prior to
entrance of a guilty plea. In concluding in the negative, the court provided the following
reasoning:
First, impeachment information is special in relation to the fairness
of a trial, not in respect to whether a plea is voluntary (“knowing,”
“intelligent,” and “sufficient[ly] aware”). . . .
....
Second, . . . this Court has found that the Constitution, in respect to a
defendant’s awareness of relevant circumstances, does not require complete
knowledge of the relevant circumstances, but permits a court to accept a
guilty plea, with its accompanying waiver of various constitutional rights,
despite various forms of misapprehension under which a defendant might
labor. . . .
....
At the same time, a constitutional obligation to provide
impeachment information during plea bargaining, prior to entry of a guilty
plea, could seriously interfere with the Government’s interest in securing
those guilty pleas that are factually justified, desired by defendants, and
help to secure the efficient administration of justice. . . .
Consequently, the Ninth Circuit’s requirement could force the
Government to abandon its “general practice” of not “disclos[ing] to a
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defendant pleading guilty information that would reveal the identities of
cooperating informants, undercover investigators, or other prospective
witnesses.” Brief for United States 25. It could require the Government to
devote substantially more resources to trial preparation prior to plea
bargaining, thereby depriving the plea-bargaining process of its main
resource-saving advantages. Or it could lead the Government instead to
abandon its heavy reliance upon plea bargaining in a vast number—90% or
more—of federal criminal cases. We cannot say that the Constitution’s due
process requirement demands so radical a change in the criminal justice
process in order to achieve so comparatively small a constitutional benefit.
Id. at 629-32 (alterations in original).
The United States, in its amicus brief, argues that, if we agree with the Opinion’s
interpretation of timely, prosecutors arguably would be required under our ethical rules to
provide material impeachment evidence to a defendant prior to entering a plea agreement,
even though the United States Supreme Court has specifically stated that there is no
constitutional obligation to do so. See id. This example demonstrates merely one
problem with having an ethical obligation that is distinct from a prosecutor’s
constitutional obligations.
Because we already have interpreted Rule 3.8(d) as coextensive in scope with
Brady and its progeny, we decline to interpret “timely” as any other definition than what
is required constitutionally as a timely disclosure. Accordingly, we hereby vacate section
II of the Board’s Opinion.
Conclusion
For the reasons stated above, we vacate the Board’s Formal Ethics Opinion 2017-
F-163. We also hold that, except as provided otherwise in this opinion, the ethical
obligations under Rule 3.8(d) of Tennessee’s Rules of Professional Conduct are
coextensive in scope with the obligations of a prosecutor as provided by applicable
statute, rules of criminal procedure, our state and federal constitutions, and case law.
___________________________________
JEFFREY S. BIVINS, CHIEF JUSTICE
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