Those who attended the NAFUSA annual conference in Nashville in 2018 will recall the spirited panel discussion regarding the Tennessee Board of Professional Responsibility ethics opinion 2017-F-163. That opinion held: “Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or that otherwise falls within Rule 3.8(d)’s disclosure requirement, the prosecutor must disclose it as soon as reasonably practicable.” (Id. at 4.) On August 23, 2019, the Tennessee Supreme Court vacated ethics opinion 2017-F-163.

However, on August 26, 2019, the Chief Judge of the District Court for the Eastern District of Tennessee, Hon. Pamela L. Reeves, wrote J. Douglas Overbey, the United States Attorney for the district, and advised him that the state court’s decision does not control the district court’s ethical standards.

Writing on behalf of the entire bench, Chief Judge Reeves wrote, “The state court’s decision does not control this Court’s ethical standards.” She concluded, “In this regard, the judges in our district have determined that the laudable sentiments in 2017-F-163 are an expression of what should be expected of attorneys representing the United States in criminal cases. That being the case, it is still our expectation that Assistant United States Attorneys who appear before us will disclose exculpatory and mitigating material to a criminal defendant in the manner described in the referenced ethics opinion, and certainly before any guilty plea.”