U.S. Department of Justice. June 4, 2018

Transcription

1 U.S. Department of Justice June 4, 2018 Ms. Sandra Garrett Chief Disciplinary Counsel Tennessee Board of Professional Responsibility 10 Cadillac Drive, Suite 220 Brentwood, Tennessee Re: Tennessee Formal Ethics Opinion 2017-F-163 Dear Ms. Garrett: On behalf of the U.S. Department of Justice ( the Department ), including the many Assistant United States Attorneys and Department attorneys who practice in Tennessee, we write to urge the Board of Professional Responsibility ( the Board ) to reconsider, and ultimately withdraw, Formal Ethics Opinion 2017-F-163 ( the Opinion ), issued on March 15, In submitting this letter, we would like respectfully to point out various misapprehensions underlying the Opinion s analysis of the scope and timing of prosecutors disclosure obligations, and bring to the Board s attention a number of practical concerns that the Opinion raises, particularly for federal prosecutors. We appreciate the opportunity to comment on the Opinion. I. Background Before discussing our concerns with the Opinion, we think it would be helpful to review the historical backdrop of ABA Model Rule 3.8(d) (upon which Tennessee Rule 3.8(d) is based) and ABA Formal Opinion (upon which the Opinion is significantly premised). These sources cannot be properly understood without an appreciation of the long-running debate over the timing and scope of criminal discovery, including the development of the substantive law through court decisions, legislation, and amendments to the Federal Rules of Criminal Procedure. The Department agrees wholeheartedly with the proposition that [a] prosecutor has the responsibility of a minister of justice whose duty is to seek justice rather than merely to advocate for the State s victory at any given cost. See TENNESSEE R. PROF L CONDUCT R. 3.8 cmt. [1]. As a minister of justice, a prosecutor is required to do more than simply advocate on behalf of his client. A prosecutor must also work to protect the rights and interests of others, including defendants, victims, witnesses, and the public at large. Not surprisingly, protecting the rights and interests of these diverse stakeholders sometimes involves difficult tradeoffs. This is particularly true in the area of criminal discovery, where the interests of defendants will sometimes be in tension with those of victims and witnesses, as well 1

2 as with institutional interests relating to the efficient functioning of the criminal justice system. This tension is often felt most acutely in decisions regarding the timing and scope of disclosures relating to the impeachment of potential prosecution witnesses. Consider, for example, a case in which a dozen eyewitnesses see a defendant brandish a gun during a drug deal. One of those witnesses is the defendant s next-door neighbor. After initially denying that he was present during the incident, the neighbor acknowledges that, in fact, he saw the defendant commit the crime. He explains that he fears retaliation or harassment from the defendant (or the defendant s family and friends) if he is known to be cooperating with the investigation. The witness also has a prior conviction for perjury and a long history of drug abuse. Should his cooperation, prior inconsistent statement, criminal history, and substance-abuse history all be disclosed to the defendant immediately, even if the prosecutor believes that it is extraordinarily unlikely that this witness will ever be called to testify? Disclosing the information immediately could theoretically be useful to the defendant. But it would come at the cost of gratuitously exposing the witness to danger and embarrassment. How best to balance these competing concerns has been the subject of extensive debate in a number of different forums, with courts, legislatures, and rules committees all weighing in. The Supreme Court, for example, has held that the Constitution requires the prosecution to disclose to the defendant all exculpatory and impeachment evidence that is material to guilt or punishment. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419 (1995). The Supreme Court has also made clear, however, that there is no constitutional obligation to disclose favorable impeachment evidence before a defendant pleads guilty. See United States v. Ruiz, 536 U.S. 622 (2002). Congress has also sought to balance these concerns. More than 60 years ago, Congress enacted the Jencks Act, 18 U.S.C. 3500, which was designed to prevent defendants from engaging in blind fishing expeditions through the government s files, but at the same time, to assure defendants of their Sixth Amendment right to confront their accusers by compelling the government to produce statements useful for impeachment of government witnesses. United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988) (internal quotation marks and citations omitted). The Act accommodates both of these concerns by protecting the government s interests before trial and by protecting the defendant s rights at trial, since under the Act the impeachment material is disclosed in time to be used by the defense at trial. Id. As the Sixth Circuit has recognized, providing the defense with such a broad right of pre-trial discovery would vitiate an important function of the Jencks Act, the protection of potential government witnesses from threats of harm or other intimidation before the witnesses testify at trial. Id. at Congress has also spoken to related issues involving the disclosure of information about victims. The Crime Victims Rights Act, 18 U.S.C. 3771, grants crime victims the right to be reasonably protected from the accused and the right to be treated with respect for [their] dignity and privacy, while further directing prosecutors to use their best efforts to protect these rights. The federal judiciary and its Rules Committees also have carefully considered the balance of the rights of defendants against a fair and efficient system regulating the timing and disclosure of criminal discovery, including potential witness impeachment evidence, through the Federal 2

3 Rules of Criminal Procedure. For example, the basic principles of the Jencks Act are reflected in Rule 26.2, which requires a witness statement to be produced to the opposing party only after that witness has testified on direct examination. Rule 16(a)(2) further makes clear that statements made by prospective government witnesses are only discoverable as provided in the Jencks Act. And Rule 17(h) states that compulsory process may not be used to subpoena a statement of a witness or of a prospective witness. Taken together, Congress and the Rules Committee have made abundantly clear that the disclosure of witness statements including those containing information favorable to the defendant cannot be compelled prior to the witness s testimony. See United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994) ( When Brady material sought by a defendant is covered by the Jencks Act,... the terms of that Act govern the timing of the government s disclosure. ). In addition, as a matter of policy, the Department requires all prosecutors to take a broad view of materiality when deciding whether a particular piece of evidence is either exculpatory or impeaching. It also generally encourages prosecutors to make early disclosure of documents covered by the Jencks Act. Whether these cases, statutes, rules, and policies strike the appropriate balance has been the subject of debate for decades. The criminal defense bar has tried many times, and in many different forums, to change the rules governing the scope and timing of discovery. See generally Kirsten M. Schimpff, Rule 3.8, The Jencks Act, and How the ABA Created a Conflict Between Ethics and the Law on Prosecutorial Disclosure, 61 Am. U. L. Rev. 1729, (2012) (summarizing this history); R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 VAND. L. REV. 1429, (2011) (same). To date, these efforts have generally been rebuffed by courts, Congress, and the Rules Committee. It was against this historical backdrop that the ABA Standing Committee on Ethics and Professional Responsibility issued ABA Formal Opinion in In that opinion, the Committee concluded that Model Rule 3.8(d) which had not been amended or clarified during the ABA s recent Ethics 2000 overhaul should now be read to require prosecutors to turn over all information favorable to the defendant at the earliest practicable moment, even if the information is of de minimis value, unless the prosecutor is granted a protective order by the court. In so doing, the Committee attempted not just to enter into, but to override, the ongoing debate about how best to balance the competing interests involved in criminal discovery. Since then, the opinion has been criticized. See, e.g., In re Riek, 834 N.W. 384, 390 (Wis. 2013) (observing that ABA Formal Opinion has received some pointed criticism, and that [s]ome jurisdictions explicitly align their ethics rules on prosecutorial disclosure with federal constitutional standards ); Cassidy, supra, at Commentators have criticized the process by which ABA Formal Opinion was issued, since it appears to be an attempt to achieve through the backdoor what could not be achieved through the normal channels. See Schimpff, supra, at 1746 ( Having tried, and largely failed, to change the law in favor of defendants interests in earlier and broader disclosure, the proponents of these failed measures found a more sympathetic audience in the Committee, which has chosen to exercise its historically considerable influence by pushing through, via an ethics opinion, substantive changes to the disclosure rules that have been otherwise unattainable. ). 3

4 Because the Opinion largely tracks the analysis of ABA Formal Opinion , it is important for the Board to understand how that opinion came about, and to appreciate the extent to which it has proved to be controversial. With that background in mind, we now turn to the Opinion s substance. II. The Opinion s Findings and Conclusions Are Unpersuasive The Opinion s analysis rests on several errors and fails to recognize the full scope of relevant authorities, especially those unique to the federal court criminal practitioner. First, the Opinion draws precisely the wrong lesson from Tennessee Rule 3.8(d) s text and history. When reviewing that text and history, the relevant question should not be, as the Opinion suggests, whether there is evidence that the rule contains an implicit materiality limitation or was otherwise intended to codify constitutional law. (Op. at 3.) Instead, the relevant question should be whether there is evidence that the Rule was intended or understood to radically change the scope of prosecutors discovery obligations. There is no evidence, from the time of Tennessee Rule 3.8(d) s adoption, that its highly generalized language was either intended or understood to expose a prosecutor to disciplinary sanction in scenarios where the prosecutor has complied with all discovery-related obligations imposed by substantive law. If such intention or understanding existed, it would surely be reflected in the historical record or comments to the Rule. Not only does the record lack such evidence, the response of the District Attorneys General Conference expressly stated that, with one minor exception, the Proposed Rule appears to track the Brady Rule. 1 This reading of Tennessee Rule 3.8(d) was entirely reasonable, given that the drafters described it as substantially similar to DR 7-103(B), which had never been interpreted to impose discovery obligations that greatly exceeded those imposed by substantive law. 2 Moreover, before adopting the Proposed Tennessee Rules of Professional Conduct, the Clerk of the Appellate Courts asked interested individuals and organizations to identify issues related to the Proposed Rules on which they would like to be heard before the Tennessee Supreme Court. The Court then issued an order scheduling oral argument, in which it identified twelve issues to be argued. 3 Absent from this list was any discussion of the scope of Rule 3.8(d). Again, had anyone believed that Rule 3.8(d) would effect a significant change in prosecutors discovery obligations, it is hard to imagine that the issue would not even have been flagged for further discussion. 1 See Tennessee District Attorneys General Conference, Comment on the Proposed Rules of Ethics (April 27, 2001) (attached for reference at Ex. A). 2 See Tennessee Bar Ass n, Prof l Standards Comm., Proposed Rule 3.8: Special Responsibilities of a Prosecutor (Oct. 29, 2001) (attached for reference at Ex. B). 3 See In re Proposed Tennessee Rules of Prof l Conduct, No. M SC-RL-RL (Tenn. April 18, 2002) (attached for reference at Ex. C). 4

5 Thus, the text and history of Tennessee Rule 3.8(d) support the proposition that the Rule was neither intended nor understood to be a radical change to prosecutors existing discovery obligations. The Opinion now interprets the Tennessee Rule without articulable support from its text, commentary, or drafting history. Second, the Opinion miscasts the state of the law interpreting the scope of the Rule s disclosure obligation. (Op. at 2 (asserting that [a] majority of states hold that the ethical duty of a prosecutor is broader and extends beyond Brady ).) A close examination reveals that courts and bar authorities are significantly split in defining the Rule s relationship to a prosecutor s disclosure obligations under Brady and its progeny. 4 At bottom, the Opinion is wrong to suggest that there is a clear national consensus favoring a broader disclosure obligation under the Rule. In reaching the opposite conclusion, the Opinion mistakenly counts Louisiana as a jurisdiction that has embraced the rule that a prosecutor s ethical duty is broader than Brady. (Op. at 2 (citing In re Jordan, 913 So. 2d 775 (La. 2005)).) In fact, the Supreme Court of Louisiana has expressly held that the duties outlined in 3.8(d) and Brady are coextensive, thereby rejecting a reading of 3.8(d) that effectively removes the materiality standard enumerated by Bagley. See In re Seastrunk, 236 So.3d 509, (La. 2017). The Opinion also incorrectly states that none of the cases which hold the Rule to be coextensive with Brady provide support for that interpretation. (Op. at 2.) In fact, the courts 4 See, e.g., In re Seastrunk, 236 So. 3d 509, (La. 2017) (Rule 3.8(d) and Brady are coextensive); State ex rel. Oklahoma Bar Ass n v. Ward, 353 P.3d 509 (Okla. 2015) (construing Oklahoma version of rule as consistent with the scope of disclosure required by applicable law ); In re Riek, 834 N.W.2d 384 (Wis. 2013) (declining to construe Wisconsin version of rule to impose ethical obligations on prosecutors that transcend the requirements of Brady and finding that [d]isparate standards are likely to generate confusion ); Disciplinary Counsel v. Kellogg Martin, 124 Ohio St.3d 415, 923 N.E.2d 125 (Ohio 2010) (declining to construe Ohio version of the rule as requiring a greater scope of disclosure than Brady out of concern it would threaten prosecutors with professional discipline for failing to disclose evidence even when the applicable law does not require disclosure ); In the Matter of Attorney C, 47 P.3d 1167 (Colo. 2002) (finding Colorado version of the rule aligned with Brady and adopting a materiality standard to avoid imposing inconsistent obligations upon prosecutors ). But see, e.e., In re Larsen, 379 P.3d 1209 (Utah 2016) (holding that the standards in Brady and a prosecutor s ethical obligations to disclose favorable material are distinct ); In re Kline, 113 A.3d 202 (D.C. 2015) (D.C. version of the rule does not include materiality limitation); In re Disciplinary Action Against Feland, 820 N.W.2d 672 (N.D. 2012) (rejecting argument that North Dakota equivalent to Rule 3.8(b) is coextensive with Brady); Schultz v. Comm n for Lawyer Discipline, No , 2015 WL at *6 (Tex. Bd. Discipl. App. Dec. 17, 2015) (holding that Texas version of Rule 3.8(d) contains no materiality requirement ). Other states have addressed the topic in the language of their Rules or by adopting official commentary to the rules. Compare N.C. RULES OF PROF L CONDUCT R. 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)) with THE RULES OF PROF L CONDUCT OF THE STATE BAR OF CAL. R Discussion [3]; MASS. RULES OF PROF L CONDUCT R. 3.8 cmt. [3A]. In addition, federal courts in some states have addressed the topic. Compare United States v. Weiss, Criminal Case No. 05-CR-179-B, 2006 WL , at *5-7 (D. Colo. June 21, 2006) with United States v. Wells, No. 3:13-CR RRB, 2013 WL , at *4 (D. Alaska Sep. 11, 2013); United States v. Acosta, 357 F. Supp. 2d 1228 (D. Nev. 2005). 5

6 interpreting the Rule in this way have consistently explained that it is improper to subject prosecutors to inconsistent disclosure obligations, especially when prosecutors are well-guided by the considerable and defined body of substantive law and other court orders requiring prosecutors to disclose exculpatory and impeaching information. See, e.g., In re Att y C, 47 P.3d at 1171; Ward, 353 P.3d at ; In re Riek, 834 N.W.2d at As the Supreme Court of Louisiana recently recognized, under such an interpretation, prosecutors would face unclear ethical standards that would be in conflict with their substantive law obligations and would leave them with uncertainty as to how to proceed. See In re Seastrunk, 236 So.3d at ; see also In re Riek, 834 N.W.2d at 390 ( Disparate standards are likely to generate confusion and could too easily devolve into a trap for the unwary ). Courts have likewise cautioned that a broad interpretation of Rule 3.8(d) invites the use of an ethical rule as a tactical weapon in criminal litigation, with the practical effect of such a threat resulting in poor policy. In re Seastrunk, 236 So.3d at The Riek Court has summarized these related concerns well: Under conflicting standards, prosecutors would face uncertainty as to how to proceed and could face professional discipline for failing to disclose evidence even when applicable constitutional law does not require disclosure of the same evidence. The practical effect disclosing evidence to avoid disciplinary sanctions could effectively expand the scope of discovery currently required of prosecutors in criminal cases. A broader interpretation also invites the use of the ethics rule as a tactical weapon in litigation, contrary to our stated intent in SCR Chapter 20 (Preamble, cmt. 20). What better way to interfere with law enforcement efforts than to threaten a prosecutor with a bar complaint? Prosecutors should not be subjected to disciplinary proceedings for complying with legal disclosure obligations. In re Riek, 834 N.W.2d at (citations and references omitted). The Opinion relies on ethics opinions from various state disciplinary boards to suggest that its conclusion is correct. These ethics opinions, however, are neither holdings of, nor binding on, the courts of any state, and should not be characterized as such. Moreover, one of the ethics opinions that the Opinion relies on in its majority-rule analysis comes not from a state disciplinary board but from a committee of the New York City Bar Association. 5 Third, the Opinion overstates the significance of case law from the U.S. Court of Appeals for the Sixth Circuit when it asserts that the Sixth Circuit has held that the Brady standard for materiality is less demanding than the ethical obligations imposed on a prosecutor, citing the case 5 See Ass n of the Bar of the City of New York, Committee on Prof l Ethics, Formal Op : Prosecutors Ethical Obligations to Disclose Information Favorable to the Defense, P NYCBAR 5, available at 3_Prosecutors_Ethical_Obligations_PROFETH_ pdf. It appears that Westlaw likewise miscites the opinion as being promulgated by the New York State Bar Association. See 2016 WL But a review of the formal opinions from the New York State Bar Association (available at makes clear that this opinion comes from the Bar of the City of New York, rather than any state board of professional conduct. 6

7 of Brooks v. Tennessee, 626 F. 3d 878, 892 (6th Cir. 2010). In fact, the holding of Brooks was that the prosecution s failure to disclose certain impeachment evidence did not result in prejudice, and therefore did not violate Brady. Id. at 894. It was only in dicta that the Brooks Court observed that, [a]s a professional and ethical matter, the prosecution should have disclosed the impeachment evidence, but that this professional failing did not affect the constitutional analysis, since the Brady standard for materiality is less demanding than the ethical obligations imposed on a prosecutor. Id. at This observation was based, in turn, on the U.S. Supreme Court s tentative and speculative statement, in Cone v. Bell, that [a]lthough the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor s ethical or statutory obligations. 556 U.S. 449, 470 n.15 (2009) (emphasis added) (citing, inter alia, ABA Model Rule 3.8(d)). But as Chief Justice Roberts explained in his concurring opinion, [t]he ABA standards are wholly irrelevant to the disposition of this case, and the majority s passing citation of them should not be taken to suggest otherwise. Id. at (Roberts, C.J., concurring in the judgment). In short, the observations in dicta from Brooks and Cone are not binding and in no way obligate the Board, or the Tennessee Supreme Court, to conclude that Rule 3.8(d) jettisons the traditional materiality standard that has long governed prosecutors disclosure obligations. Fourth, the Opinion s interpretation of the word timely is both illogical and inconsistent with the use of the word elsewhere in the Rules. The term timely is not defined in the Rules themselves, and thus should be given its usual meaning, which is occurring, done, or made at a fitting, suitable, or favorable time. See Oxford English Dictionary; see also Merriam-Webster ( coming early or at the right time ). Whether a particular time is fitting, suitable, favorable, or right necessarily depends on the context. In legal contexts, something is done in a timely manner when it is done by the deadline set forth by statute, rule, or court order, or when it is done in time to be used for its intended purpose. The Opinion, however, divorces the timeliness analysis from any context and concludes that, for a disclosure to be timely, it must be done as soon as reasonably practicable. (Op. at 4.) This conclusion is inconsistent with customary usage. For example, taxpayers must file their tax returns in a timely manner; but this simply requires the returns to be filed by the legal deadline, not at the earliest practicable moment. This conclusion is also inconsistent with the language used in the rest of the Rules. The Rules already have a term that means as soon as reasonably practicable, and that term is promptly. See, e.g., TENNESSEE RULES PROF L CONDUCT R. 1.4, 1.10, 1.15, 1.16, 1.18, 3.3, 4.1. Indeed, the Rules use the term promptly even within Rule 3.8 itself. See TENNESSEE RULES PROF L CONDUCT R. 3.8(g)(1). If the drafters of the Rules had intended for Rule 3.8(d) to require disclosures as soon as reasonably practicable, they would have required prompt disclosure, not timely disclosure particularly where timely disclosure tracks the familiar obligations set forth in the substantive law. See Schimpff, supra, at The Sixth Circuit made a similar observation about Michigan Rule 3.8(d) in dicta in McMullan v. Booker, 761 F.3d 662, 675 (6th Cir. 2014), in the process of holding that there had been no Brady violation. 7

8 III. Practical Concerns In addition to these misapprehensions of the law, the Opinion also poses a number of serious practical concerns. First, the Opinion s discussion of the scope of Rule 3.8(d) is vague and fails to give meaningful guidance to prosecutors. While at certain points the Opinion tracks the language of Rule 3.8(d) referring to information that tends to negate the guilt of the accused or mitigates the offense it also frequently describes prosecutors disclosure obligations as covering all information that is merely favorable to the defense. (Op. at 1, 3.) In so doing, the Opinion fails to distinguish between truly exculpatory or mitigating evidence and evidence that would merely serve to impeach potential prosecution witnesses. In failing to make such a distinction, the Opinion has waded into a hornet s nest with perhaps unintended consequences. See Cassidy, supra, at As noted, whether impeachment evidence is indeed favorable to the defense often depends largely on context and may not be apparent until shortly before trial, as the witness list is finalized and the theory of defense, if any, begins to come into focus. Language in the Opinion could be interpreted to suggest, however, that prosecutors may have an ethical obligation to disclose all impeachment evidence at arraignment. Likewise, while the Opinion concludes that a prosecutor s ethical obligation is broader than and extends beyond Brady, it fails to provide any guidance on what this means in practice. Is the Opinion merely saying that, in order to find an ethical violation, it is unnecessary to first find a Brady-based reversal of a criminal conviction that is, to find that there is a reasonable probability that the failure to disclose the information resulted in a different outcome at trial? Or is the Opinion adopting ABA Formal Opinion s sweeping conclusion that a prosecutor violates his ethical duties when he fails to disclose (at the earliest practicable moment) any favorable information, even when there would be no reason for the prosecutor to view the information as favorable, and even when the information s favorable value is negligible on its face and cumulative of other information that has already been disclosed? Ultimately, it would be unfair to bind a prosecutor to such a vague and undefined standard. See, e.g., In re Kline, 113 A.3d at (upholding the decision of the Board on Professional Responsibility that Kline violated Rule 3.8(e), but reversing the sanction because the scope of the ethical rule was not clear at the time of the violation); Att y Grievance Comm n v. Gansler, 835 A.2d 548, (Md. App. Ct. 2003) (concluding that, because there was no settled definition of a Maryland Rule of Professional Conduct, the Rule did not provide adequate guidance required to impose sanctions for violating the provision). Second, the Opinion puts prosecutors and particularly federal prosecutors in an impossible position by imposing obligations that conflict with federal law. See, e.g., In re Riek, 834 N.W.2d at (observing that imposing disparate standards would likely generate confusion and could too easily devolve into a trap for the unwary ). Consider, for example, the timing and disclosure of witness statements containing impeachment material. As the Supreme Court held in Ruiz, the Constitution does not require that such statements be disclosed before a defendant pleads guilty. Ruiz, 536 U.S. at 633. Moreover, the Jencks Act and Rule 26.2 actually preclude courts from ordering that such witness statements be disclosed prior to the witness s testimony. Thus, it is undisputed that a federal prosecutor complies with his disclosure obligations, 8

9 and acts consistently with Congress s views on witness safety, by disclosing these statements in a reasonable time before trial. Under the Opinion, however, the required time may now be arraignment which may be months or years before trial, if a trial happens at all. See Steven Koppell, Note, An Argument Against Increasing Prosecutors Disclosure Obligations Beyond Brady, 27 Geo. J. Legal Ethics 643, 648 (2014) (arguing that states should refuse to implement the ABA Opinion because adopting the Opinion would impose inconsistent obligations on prosecutors ). Third, the Opinion invites the use of Rule 3.8(d) as a tactical weapon. Indeed, shortly after the issuance of ABA Formal Opinion , Irwin Schwartz, a past president of the National Association of Criminal Defense Lawyers, published an article urging defense lawyers to use Rule 3.8(d) as a tool to secure discovery of exculpatory and mitigating information. See Schimpff, supra, at 1772 (quoting Irwin H. Schwartz, Beyond Brady: Using Model Rule 3.8(d) in Federal Court for Discovery of Exculpatory Information, CHAMPION, Mar. 2010, at 35). Under the Opinion s logic, any defense attorney or defendant who is dissatisfied with the scope or timing of the discovery that the defendant is entitled to under the law may be sorely tempted to file, or at least threaten, an ethics complaint. See In re Seastrunk, 236 So.3d at (noting that [a] broader interpretation of Rule 3.8(d) also invites the use of an ethical rule as a tactical weapon in criminal litigation ). An interpretation that would invite the use of the Rules as procedural weapons, would directly contravene the purpose of the Rules, as expressed in part 21 of the Preamble. 7 Fourth, the Opinion could impede the proper functioning of the criminal justice system. As the Supreme Court explained in Ruiz, a requirement that the government 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. Ruiz, 536 U.S. at 631. Not only could this requirement disrupt ongoing investigations and expose potential witnesses to risk, [i]t 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. Id. at The Opinion neither cites Ruiz, nor makes any argument that would undercut its wisdom or vitality. In effect, the Opinion could result in breaking a federal system that has been found to work by Congress, the federal judiciary, and the Federal Rules Committees. Fifth, the Opinion has the potential to produce unintended results. If the Opinion is interpreted to mean that the Rule requires pre-plea disclosure of all impeachment evidence, without regard to materiality, then that could mean that a prosecutor commits an ethical violation if it can be shown that it was practicable for the prosecutor to produce certain favorable information earlier, even where (1) the favorable information is of de minimis value; (2) it would merely serve as impeachment material for a non-critical witness who was unlikely to testify in any event; (3) the information would have been disclosed in ample time for defense counsel to make use of it had 7 The Opinion does not disclose what prompted the Board to address this issue. If it was an opinion requested or urged by a member of the criminal defense bar, rather than by a prosecutor, that would tend to confirm the intended use of the Opinion as a tactical weapon. In the interest of full disclosure, and consistent with the kinds of obligations that the Board seeks to impose upon prosecutors, we ask that the source of any request or effort to influence the Board and its staff concerning the issuance of the Opinion be disclosed to the public and made available to the courts that may be called upon to evaluate the Opinion. 9

10 the witness ever been called to testify; and (4) the defendant pleaded guilty, and does not dispute his guilt or deny that there was overwhelming evidence to prove his guilt. Professional discipline should be reserved for serious violations that cast doubt on an attorney s character or fitness to practice law. It should not be applied in cases where a prosecutor has complied with all substantive law obligations, and no defendant has suffered any prejudice. Finally, it should be noted that the Rule s exception for protective orders is woefully insufficient to remedy the problems that the Rule creates. [R]equiring the prosecutor to seek a protective order to protect the privacy and safety interests of victims, witnesses, and undercover operatives even when the defendant intends to plead guilty creates further steps in the litigation, causes delays, and imposes resource costs on the courts, undermining several of the primary efficiency rationales for plea bargaining. See Cassidy, supra, at Moreover, requiring judges to make case-by-case judgments about the necessity of protective orders, and the appropriate timing of the related disclosures, would completely overturn Congress s judgment in enacting the Jencks Act, which adopted a blanket rule in lieu of case-by-case adjudications. Further, it effectively would require prosecutors to engage in ex parte communications with courts about the nature and strength of the evidence against the accused so that the courts can fully assess the needs for disclosure and the potential harms posed to victims and witnesses. This may have the unintended effect of shifting traditional prosecutorial responsibilities to the courts, depriving the courts of their traditional independence from the role of the prosecutors. IV. Conclusion The question of federal prosecutors obligations to comply with disclosure of discovery is paramount to the fair and efficient administration of justice. If the Board wishes to revisit the scope and timing of criminal discovery obligation under Tennessee Rule 3.8(d), any such change should be brought about by the Rules Committee, the legislature, or the courts, after consultation with and input from all interested parties. Even if such a change were to be brought about by way of the ethical rules, it should at least be done by way of an amendment to the rules, rather than an opinion that purports to interpret general terms that were never understood to effect such a change when they were adopted. We therefore respectfully request that the Board withdraw the Opinion. We would also welcome the opportunity to appear before the Board personally to discuss these concerns. Sincerely, Donald Q. Cochran J. Douglas Overbey D. Michael Dunavant United States Attorney United States Attorney United States Attorney Middle District of TN Eastern District of TN Western District of TN 10