I wrote a little bit about Formal Ethics Opinion 2017-F-163 a couple of years ago when it was first issued. I haven’t said anything here about it since then because I ended up being retained by the Tennessee District Attorneys General Conference to challenge the opinion.
Having obtained permission from my client to do so, I’m posting a copy for you of today’s Tennessee Supreme Court opinion vacating Formal Ethics Opinion 2017-F-163.
As the conclusion portion of the opinion sums up, the ruling not only vacates the FEO but weighs in on what RPC 3.8(d) means in Tennessee:
For the reasons stated above, we vacate the Board’s Formal Ethics Opinion 2017-F-163. We also hold that, except as provided otherwise in this opinion, the ethical obligations under Rule 3.8(d) of Tennessee’s Rules of Professional Conduct are coextensive in scope with the obligations of a prosecutor as provided by applicable statute, rules of criminal procedure, our state and federal constitutions, and case law.
You can download a copy of the opinion using the button below.