In re Petition to Stay the Effectiveness of Formal Ethics Op. 2017-F-163

• Decision Date: 23 August 2019
• Docket Number: No. M2018-01932-SC-BAR-BP,M2018-01932-SC-BAR-BP
• Citation: 582 S.W.3d 200
• Parties: IN RE: PETITION TO STAY THE EFFECTIVENESS OF FORMAL ETHICS OPINION 2017-F-163
• Court: Tennessee Supreme Court

582 S.W.3d 200

IN RE: PETITION TO STAY THE EFFECTIVENESS OF FORMAL ETHICS OPINION 2017-F-163

No. M2018-01932-SC-BAR-BP

Supreme Court of Tennessee, AT NASHVILLE.

May 30, 2019 Session

FILED August 23, 2019

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.

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, C.J.

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.

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)?

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 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 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

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