Earlier this month, and again in a fashion that seems a bit more in keeping with NOT wanting people to know they’ve been released rather than to give advice and guidance intended to be disseminated far and wide, the Board of Professional Responsibility here in Tennessee issued two new Formal Ethics Opinions.
The only way to know they had been released would be to have not only paid attention to a Board Notes newsletter that was sent out, but to also have gone in and read said newsletter to see that it contained these two FEOs. Other than being quietly rolled out at the same time, the two FEOs do not have much in common.
One, 2018-F-165, blesses – with a laundry list of caveats – lawyer participation in an unnamed legal marketplace website that would essentially be a bit like an eBay for legal services where people looking to hire lawyers could pay for access to the site to post requests for needed services and lawyers interested in being hired could pay for access to the site and purchase the right to make a certain number of bids for services. You can go read the opinion if you’d like here, but I’m not inclined to spend any real time talking about it because there really isn’t much to say about it and the service it addresses simply doesn’t sound, realistically, like much of the kind of thing any regular consumer is going to be seek to use since it would require the consumer to pay merely to have the ability to use it to try to hire lawyers. (I could be wrong about that, of course, but, even so, this particular opinion is not of the earthshaking variety.)
The other is one that I do want to discuss at some length. It weighs in on whether the ethical duty of a prosecutor under RPC 3.8(d) is the same as the duty to disclose under the constitutional series of cases most readily referredto in shorthand as Brady.
First, based on numbering alone, it is has been in the works and obviously on hold for a bit. It is 2017-F-163. It is a bit silly for the Board to stick with, and insist on titling it a 2017 opinion, since it was signed on March 15, 2018. (For context, Opinion 165 was signed on March 9, 2018.) Though, in fairness, perhaps the Board decided to stick with a “2017” title for this FEO because it didn’t update its research from the summer of 2017 when it crafted this particular opinion. This can readily be gleaned from the fact that footnote 4 still cites to a 2005 Louisiana Supreme Court opinion as part of a “majority of states hold[ing] that the ethical duty of a prosecutor is broader and extends beyond Brady.” That decision though was overruled/repudiated by the Louisiana Supreme Court in October 2017 in In re Seastrunk:
We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive
Second, the opinion unfortunately persists in speaking of a prosecutor’s ethical duty of disclosure as going to “favorable” evidence. This is not a helpful approach because it isn’t what the rule being interepreted actually says. At all. RPC 3.8(d) doesn’t use the term “favorable evidence,” and this opinion truly should not either.
What RPC 3.8(d) speaks of [other than with respect to sentencing] is the duty to disclose “information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” Those are objective categories of things and not susceptible to the kind of subjectivity that is involved in trying to decide whether people agree as to the status of evidence as “favorable.”
Third, and related to the second, the opinion’s ultimate conclusion that the ethical duty under RPC 3.8(d) is “broader than and extends beyond Brady” is an acceptable conclusion to reach to the extent it is intended to mean that the actual language of the rule and what it says must be disclosed is not to be read to include the word “material” before “information” but, and particularly given the erroneous reference to what has to be disclosed as “favorable evidence,” it is also a woefully incomplete message to send to the bar and to prosecutors without also expressly explaining that the ethical duty is also narrower than Brady in some respects.
Specifically, what is missing from this opinion, to further explain to the public and to members of the bar generally and to remind prosecutors specifically, is language along the lines of the following: It should be noted, however, that there are aspects of the disclosure requirements of Brady that are broader than the disclosure requirements of RPC 3.8 as well. One example being that Brady may require disclosure of information that would provide a basis for impeachment even if it was not evidence that tended to negate the guilt of the accused.