October 16, 2019 Practice Points

Separation of Powers in the Trenches: Using Ethical Rules to Expand Criminal Discovery

Opinion 2017-F-163 and the tension in the Eastern District of Tennessee could represent a national trend.

By Zachary H. Greene and Jenna W. Fullerton

The U.S. Attorney’s Office and federal district judges in the Eastern District of Tennessee have been quietly waging an ethical war against each other for over a year. The conflict centers around state standards of ethics and professional responsibility.

Tracking the Model Rule, Tennessee Rule of Professional Conduct 3.8(d) requires a prosecutor to timely disclose:

[A]ll 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 . . .

In March 2018, the Tennessee Board of Professional Responsibility issued Formal Ethics Opinion 2017-F-163, to clarify a prosecutor’s duty of disclosure in a criminal case under Rule 3.8(d). Relying on a 2009 American Bar Association formal ethics opinion, the board concluded that a prosecutor’s duty under Rule 3.8(d) extends beyond the constitutional requirement to disclose only “material” exculpatory information, as enunciated by Brady v. Maryland, 373 U.S. 83 (1963).

In addressing what constitutes “timely” disclosure, the board found that once a prosecutor becomes aware of exculpatory evidence, Rule 3.8(d) requires him or her to disclose it “as soon as reasonably practicable.” According to the board, disclosure should occur before a guilty plea proceeding, as “the defendant’s decision [to plead guilty] may be strongly influenced by defense counsel’s evaluation of the strength of the prosecution’s case.”

Though the board addressed ethical rules at the state level, Opinion 2017-F-163 had the potential to affect federal prosecutions. At the time, an Eastern District of Tennessee local rule expressly adopts the Tennessee Rules of Professional Conduct. Thus, realizing the potential for Opinion 2017-F-163 to affect their prosecutions in federal court, the U.S. Attorneys for the Middle, Eastern, and Western Districts of Tennessee wrote a ten-page letter to the board in June 2018, requesting that it withdraw its opinion. The U.S. Attorney’s Office in the Eastern District also began including language in plea agreements requiring the defendant to acknowledge that the government’s obligations under Rule 3.8(d) were consistent with constitutional standards and required disclosure of certain exculpatory information only before the end of sentencing proceedings.

Even though some criminal defendants signed these plea agreements, some judges pushed back on the propriety of this language—both in and out of court. In fall 2018, the Eastern District of Tennessee decided to shore up its local rules to make clear that it is the ultimate authority on ethical obligations of attorneys practicing before it. The clerk of court issued a notice proposing to amend the local rules to provide that the Tennessee Rules of Professional Conduct represented minimum standards of conduct. Further, the proposed rule provided that the court itself “has the obligation and responsibility to interpret and apply” standards of conduct without being bound by decisions of state sources. The court adopted its proposed local rule in February 2019.

Meanwhile the board allowed presentations by the U.S. Attorney’s Offices and various other groups at its September 2018 meeting, but ultimately voted to affirm Opinion 2017-F-163. In January 2019, prosecutors across the state filed a petition in the Tennessee Supreme Court to vacate Opinion 2017-F-163. The Tennessee Supreme Court stayed the implementation of Opinion 2017-F-163 pending a hearing.

In August 2019, in In re Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163, the Tennessee Supreme Court vacated Opinion 2017-F-163, holding that Rule 3.8(d) does not provide any greater ethical obligations to disclose exculpatory information than Brady and its progeny. The court reasoned that having two different ethical and constitutional standards might “bring about a myriad of conflicts.” Moreover, the court noted that interpreting Rule 3.8(d) to extend beyond Brady would effectively amend Rule 3.8(d).

Soon after the Tennessee Supreme Court’s opinion, the judges of the Eastern District of Tennessee sought to enforce their new local rule. On August 26, 2019—three days after the Tennessee Supreme Court’s decision—Chief Judge Pamela L. Reeves sent a letter to U.S. Attorney Doug Overby, reminding him that state-law sources “may state minimum standards, but this Court is free to insist upon higher standards.” Judge Reeves announced that, despite the Tennessee Supreme Court’s ruling, the judges in the Eastern District of Tennessee expect the U.S. Attorney’s Office to disclose exculpatory evidence to criminal defendants “in the manner described in [Opinion 2017-F-163], and certainly before any guilty plea.”

Four days later, the U.S. Attorney responded by letter disagreeing that the board’s interpretation reflected the “highest standard of professional conduct.” According to the U.S. Attorney, the Tennessee Supreme Court’s ruling “restored the proper balance of interests in federal criminal cases.” He confirmed that his office would follow only the discovery policy of the Department of Justice, which requires disclosure of: (i) material exculpatory information “reasonably promptly after it is discovered”; (2) impeachment evidence “at a reasonable time before trial”; and (3) exculpatory and impeachment information related to sentencing before the court’s initial presentence investigation. But see U.S. Attorneys’ Manual § 9-5.002 (expressing disfavor for “open file” discovery but counseling that prosecutors “must comply” with local discovery rules).

The dispute has affected ongoing criminal proceedings. Catching wind of the controversy, defendants in a pill-mill conspiracy prosecution moved to compel the government to disclose exculpatory evidence before pleading guilty. The government responded in opposition, noting that “[t]he United States Attorney understood [Judge Reeves’s] letter as an invitation to confirm his office’s commitment to the highest standards of professional conduct.” During a pretrial conference, however, the court did not reach the merits of this motion and instead denied it as moot. Accordingly, the ultimate implications of Opinion 2017-F-163 in the Eastern District of Tennessee are still unclear.

Nevertheless, Opinion 2017-F-163 and the tension in the Eastern District of Tennessee could represent a national trend. Ethics panels and courts in a significant number of jurisdictions—including Michigan, Texas, Virginia, and Utah, among others—have interpreted similar rules of professional conduct to extend prosecutor’s duty of disclosure beyond constitutional standards. Many states also have expanded timing requirements by requiring disclosure before a guilty plea. For example, just this year, New York passed legislation requiring prosecutors to disclose their entire file within 15 days of arraignment, or face sanctions. Given this trend, the dispute in the Eastern District of Tennessee could keep playing itself out and create further tension between prosecutors and judicial bodies. Criminal defense attorneys should carefully consult the ethical rules in their states and the local rules of the courts in which they practice and determine whether and to what extent those rules may provide an avenue for earlier, broader discovery.

Zachary H. Greene is a litigation attorney and Jenna W. Fullerton is an associate at Miller & Martin in Chattanooga, Tennessee.


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