Tennessee Supreme Court Vacates Board of Professional Responsibility Formal Ethics Opinion 2017-F-163

August 23, 2019

In an opinion released today, the Tennessee Supreme Court vacated the Tennessee Board of Professional Responsibility’s Formal Ethics Opinion 2017-F-163, which provided guidance to prosecutors about ethical duties under Tennessee Rule of Professional Conduct 3.8(d).

On March 15, 2018, the Board of Professional Responsibility issued Formal Ethics Opinion 2017-F-163 with the purpose of clarifying Rule 3.8(d) of the Tennessee Rules of Professional Conduct.  Rule 3.8(d) covers a prosecutor’s ethical duties to disclose evidence or information tending to negate the guilt of the accused or to mitigate the offense.  The Ethics Opinion interpreted Tennessee’s ethical rules for prosecutors as extending beyond a prosecutor’s current legal duties for disclosure under federal and state constitutional law.  Additionally, the Ethics Opinion interpreted the definition of a “timely” disclosure under Rule 3.8(d) as “as soon as reasonably practicable,” which is different from current law.

On January 15, 2019, the Tennessee District Attorneys General Conference filed a petition to vacate the Ethics Opinion and requested that the Tennessee Supreme  Court stay the effectiveness of the Ethics Opinion pending review.  The Court determined that a full and deliberate review was necessary and ordered briefing and oral argument.  Additionally, the Court granted the stay of the effectiveness of the Ethics Opinion pending the Court’s review.

In its unanimous opinion, the Supreme Court considered other states’ interpretations of prosecutors’ ethical rules and ultimately agreed with the policy that a prosecutor’s ethical duties should be coextensive with the prosecutor’s legal and constitutional obligations.  The Court also determined that the history of Rule 3.8(d) supported this interpretation.  The Court disagreed with the Ethics Opinion’s interpretation of a prosecutor’s ethical duties under Rule 3.8(d) extending beyond the prosecutor’s legal duties and rather interpreted Rule 3.8(d) as being almost entirely coextensive in scope with federal and state constitutional law. The Court also recognized that a prosecutor must have knowledge of the particular information in order to have an ethical duty to disclose that information. The Court also declined to interpret “timely” within the rule as anything other than what is required constitutionally as a timely disclosure.  Accordingly, the Supreme Court vacated the Ethics Opinion in its entirety.

To read the Supreme Court’s opinion in In re: Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163, authored by Chief Justice Jeff Bivins, go to the opinions section of TNCourts.gov.