Tennessee Supreme Court Vacates Board Of Professional Responsibility

Formal Ethics Opinion 2017-F-163

Friday, August 23, 2019

In an opinion released Friday, 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 Jan. 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.



Supreme Court Concludes Burglary Statute Applies To Banned Walmart Shoplifter

Attorney General Slatery Files Lawsuit Against Walker Stalkers, LLC And Its CEO

Attorney General Slatery Files Lawsuit Against Walker Stalkers, LLC And Its CEO


The Tennessee Supreme Court has clarified that the language of Tennessee’s burglary statute allows its application to a criminal defendant who enters a retail store from which the defendant has ... (click for more)

Attorney General Herbert H. Slatery III has filed a lawsuit against Walker Stalkers, LLC and James Frazier in the Chancery Court of Davidson County. The State brings this civil enforcement action ... (click for more)

Attorney General Herbert H. Slatery III has filed a lawsuit against Walker Stalkers, LLC and James Frazier in the Chancery Court of Davidson County. The State brings this civil enforcement action ... (click for more)


Business

Supreme Court Concludes Burglary Statute Applies To Banned Walmart Shoplifter

The Tennessee Supreme Court has clarified that the language of Tennessee’s burglary statute allows its application to a criminal defendant who enters a retail store from which the defendant has been previously banned and commits a theft. The defendant, Abbie Leann Welch, was indicted for misdemeanor theft and burglary, a Class D felony, for her involvement in a scheme to enter ... (click for more)

Attorney General Slatery Files Lawsuit Against Walker Stalkers, LLC And Its CEO

Attorney General Herbert H. Slatery III has filed a lawsuit against Walker Stalkers, LLC and James Frazier in the Chancery Court of Davidson County. The State brings this civil enforcement action after the Defendants engaged in unfair or deceptive trade practices prohibited by the Tennessee Consumer Protection Act. “This Office is taking legal action because too many consumers ... (click for more)

Breaking News

Human Remains Found In Walker County

Human skeletal remains were found in Walker County in a wooded area about 500 yards off the roadway, east of the 4000 block of South Highway 27, Lafayette, by a man and his son while they were hunting Monday morning, according to Walker County Sheriff Steve Wilson. The remains are believed to be those of a Walker County man missing since Sept. 30. Robert “Robbie” Sisson III, ... (click for more)

Body Of Attorney Who Jumped From Market Street Bridge Found Near Guntersville Dam; Wife Recounts Last Contact With Him; Funeral Is Saturday

The body of a prominent Chattanooga attorney who jumped from the Market Street Bridge has been found 122 river miles away and 19 days later near Guntersville Dam in Alabama. It was identified as that of George Edward Koontz, 66, of Chattanooga. Authorities said several people saw a man jump from the bridge on Jan. 29. The family of attorney Koontz reported him missing that ... (click for more)

Opinion

School Board Needs More Leaders, Not Followers

It is disappointing that Superintendent Dr. Bryan Johnson’s contract is being prematurely extended and that the amount of his compensation package has been significantly increased based on hopes of performance improvements. The disfunction of the School Board’s discussion Monday night is reason enough for Thursday night’s vote to be reconsidered or delayed. Dr. Johnson is the ... (click for more)

Roy Exum: Don’t Fret The Coronavirus

It has been famously said, “The mind that is anxious about the future is miserable,” so let’s clear up this one right now: You ain’t gonna’ get the coronavirus. Yes, it has been declared an “emergency” in the United States, and yesterday the number of confirmed cases topped 75,000. But that’s 75,000 in a world of 7.8 billion people. Right now there have been 15 cases in the United ... (click for more)