In Re: Petition To Stay The Effectiveness of Formal Ethics Opinion 2017-F-163

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)?

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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).

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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.

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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

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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).

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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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