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se, 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;
and
making an extrajudicial statement that the prosecutor would be prohibited from mak-
ing under Rule 3.6; and
or associated with the prosecutor in a criminal matter from making an extrajudicial
statement that the prosecutor would be prohibited from making under Rule 3.6; and
evidence about a client or former client unless the prosecutor reasonably believes:
privilege;
investigation or prosecution; and
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far
the prosecutor is required to go in this direction is a matter of debate and varies in different
jurisdictions. Applicable law may require other measures by the prosecutor and knowing disregard
of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of
Rule 8.4.
[2]Paragraph (c) does not apply to an accused appearing pro se with the approval of the
tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the
rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate
protective order from the tribunal if disclosure of information to the defense could result in
substantial harm to an individual or to the public interest.
[4] Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and
other criminal proceedings to those situations in which there is a genuine need to intrude into the
client-lawyer relationship.
[5]See Rule 3.6(c) for the rules governing extrajudicial statements by prosecutors and
other lawyers participating in the investigation or litigation of a matter.
“Reasonable”See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
“Substantial”See Rule 1.0(l)
“Tribunal” See Rule 1.0(m)
Paragraph (a): DR 7-103(A) provides that a "public prosecutor . . . shall not institute . . .
criminal charges when the prosecutor or government lawyer knows or it is obvious that the charges
are not supported by probable cause."
Paragraph (d): Paragraph (d) is substantially similar to DR 7-103(B): “A public prosecutor
or other government lawyer in criminal litigation shall make timely disclosure to counsel for the
defendant, or to the defendant if the defendant has no counsel, of the existence of evidence, known
to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate
the degree of the offense, or reduce the punishment.
There is no comparable duty in the Disciplinary Rules.
Paragraph (f): DR 7-103(C) currently provides that “[i]t is unprofessional conduct for a
prosecutor to subpoena an attorney to the grand jury or to any state or federal administrative body
with a similar function without prior judicial approval in circumstances where the prosecutor or
such other government attorney seeks to compel the attorney-witness to provide evidence
concerning a person who at the time is represented by the attorney-witness.”
Paragraph (a)is identical to ABA Model Rule 3.8(a).
Paragraph (b) is identical to ABA Model Rule 3.8(b).
Paragraph (c):Paragraph (c) differs from ABA Model Rule 3.8(c) in that the prosecutor is
only prohibited from “advising” an unrepresented accused to waive important pre-trial rights. The
ABA Model Rule provides more broadly that the prosecutor shall not “seek to obtain” such
waivers.
Paragraph (d): Paragraph (d) is identical to ABA Model Rule 3.8(d), except that
disclosure to the tribunal is only required if the defendant is proceeding pro se.
Paragraph (e):Paragraph (e) differs from ABA Model Rule 3.8(e) in that the Proposed
Rule only requires that the prosecutor act with reasonable care to prevent employees of the
prosecutor’s office from making extrajudicial statements which the prosecutor was prohibited from
prevent “investigators, law enforcement personnel, employees or other persons assisting or
associated with the prosecutor in a criminal case” from making statements the prosecutor could not
make.
Paragraph (f) is identical to ABA Model Rule 3.8(F).
Paragraph (g):There is no counterpart in the Proposed Rule to ABA Model Rule 3.8(g)
that prohibits prosecutors from making extrajudicial statements that have a substantial likelihood of
heightening public condemnation of the accused.
The Final Draft is identical to the Preliminary Draft except for the deletion from paragraph
(g) of the requirement that judicial approval of a subpoena of a lawyer must be “after an
opportunity for an adversarial proceeding.” The Committee concluded that this requirement, for
which there is no counterpart in DR 7-103(C) was both unnecessary and too burdensome on the
courts.
Made
1. In response to a comment from the Tennessee District Attorneys General Conference,
and with its concurrence, the Committee has amended Paragraph (d) so that the disclosure of
exculpatory evidence need only be made to the defense except when a defendant is proceeding pro
se.In such a case, for the protection of the pro se defendant, the disclosure must be made to both
the defendant and the tribunal.
2. Both the United States Attorneys and the Tennessee District Attorneys General
Conference have asked the Court to delete Paragraph (f), which governs the issuance by
prosecutors of subpoenas to lawyers seeking evidence about a client or former client. Although
opposed to the deletion of Paragraph (f), the Committee, with the concurrence of the prosecutors,
recommends the deletion of the requirement in Paragraph (f)(4) that the prosecutor obtain prior
judicial approval. The Committee believes that the requirements in paragraphs (f)(1) through (3)
afford lawyers and their clients adequate protection against unwarranted efforts to intrude upon the
attorney-client relationship, and having no reason to believe that prosecutors will not
conscientiously comply with their professional responsibilities, the Committee sees no need for the
special, advance judicial supervision called for by paragraph (f)(4). With this change, the Proposed
Rule conforms to the ABA Model Rule. Given the special power wielded by prosecutors,
particularly with respect to the issuance of grand jury subpoenas, and the special importance of
effective assistance of counsel in criminal proceedings, the Committee persists in its belief that
paragraphs (f)(1) through (3) are appropriate standards of professional conduct that strike the right
balance between the need to protect the attorney-client relationship and the need for effective law
enforcement.
3. In response to concerns voiced by the United States Attorneys and the Tennessee
District Attorneys General Conference, the Committee recommends the deletion of Paragraph (g)
and Comment [5]. Although Paragraph (g) is in the ABA Model Rule, the Committee concluded
that the special prohibition against prosecutorial statements that have“a substantial likelihood of
heightening public condemnation of the accused”is too vague and might have an
unconstitutionally chilling effect on statements made by prosecutors, especially when they are
public condemnation of an accused that are made prior to or during judicial proceedings would
normally be prohibited by Rule 3.6 (Trial Publicity).
4. In response to concerns voiced by the United States Attorneys and the Tennessee District
Attorneys General Conference, the Committee recommends the deletion of the sentence in
Comment [1] that states that Rule 3.3(a)(3) (mandatory disclosure of all relevant facts in an ex parte
hearing applies to grand jury proceedings. The Committee agrees with the prosecutors that Rule
3.3(a)(3) should not be applicable to grand jury proceedings.
5. The Board of Professional Responsibility recommends deletion of Paragraphs (b), (c),
and (e)(2). The Committee opposes this recommendation, in part because these provisions have
met with the approval of both the United States Attorneys and the Tennessee District Attorneys
General Conference.
6. The United States Attorneys have asked the Court to add a paragraph to Rule 3.8 that
would broadly state that, “notwithstanding any other provision in these rules, it is not professional
misconduct for a government lawyer to supervise, encourage, conduct or advise civil or criminal
investigators or other law enforcement officials about lawful law enforcement activities involving the
investigation of civil, criminal or constitutional rights violations.”It is the Committee’s view that
the Court should not craft exceptions to the Rules of Professional Conduct that are only applicable
to prosecutors. If there are to be such law enforcement exceptions, they should be authorized by
other law, with this Court being the final arbiter of whether such law should be given precedence
over the Rules of Professional Conduct. The Committee would note that the special concern of the
prosecutors about the prohibition against ex partecommunications with represented persons, as
applied to criminal and civil law enforcement investigations, has been directly addressed in Rule 4.2,
Comment [7], in a way acceptable to the Tennessee District Attorneys General Conference.
PROPOSED RULE 3.9
ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS
A lawyer representing a client before a legislative body or administrative agency in a non-
adjudicative proceeding shall disclose that the appearance is in a representative capacity and shall
conform to the provisions of Rules 3.3(a)(1) and (2), (b), (c), and (d), 3.4(a) through (c), 3.5(a), (b)
and (e), and 4.1.
[1]In representation before bodies such as legislatures, municipal councils, and executive
and administrative agencies acting in a rule-making or policy-making capacity, lawyers present
facts, formulate issues and advance argument in the matters under consideration. The
decision-making body, like a court, should be able to rely on the integrity of the submissions made
to it. A lawyer appearing before such a body should deal with the tribunal honestly and in
conformity with applicable rules of procedure.
[2]Lawyers have no exclusive right to appear before non-adjudicative bodies, as they do
before a court. The requirements of this Rule therefore may subject lawyers to regulations
inapplicable to advocates who are not lawyers. However, except for the fact that lawyers need not
secure the permission of a legislative body or administrative agency to withdraw from the
representation of a client in a non-adjudicative matter and that certain of the rules governing the
conduct of lawyers in adjudicative matters are not pertinent to non-adjudicative matters, legislatures
and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.
[3] This Rule does not apply to representation of a client in a negotiation or other bilateral
transaction with a governmental agency; representation in such a transaction is governed by Rules
4.1 through 4.4.
[4] See Rule 4.1 for the duties of a lawyer who comes to know that the lawyer’s client or a
witness whose testimony is presented by the lawyer has testified falsely or otherwise presented
false evidence in a non-adjudicative proceeding conducted by a legislative body or administrative
agency.
The Proposed Rule is identical to ABA Model Rule 3.9 except for a modification of the
cross- references to account for changes we made in the cross-referenced rules. ABA Model Rule
3.9 incorporates by reference the Model Rule 3.3(a) to (c) duty to disclose client perjury or
falsification of evidence. The Committee has proposed different rules with respect to client perjury
and fraud. The lack of a cross reference in Proposed Rule 3.9 to Proposed Rule 3.3(e) through (j)
Proposed Rule 3.3(e) through (j). In case of client fraud or perjury by a client in a non-adjudicative
proceeding, then, the lawyer’s duty would entail non-disclosure and either a silent withdrawal or, in
some circumstances, a “noisy” withdrawal.
The Final Draft is identical to the Preliminary Draft except for the replacement of the
reference to a legislative and administrative “tribunal” with a reference to legislative “body” and
administrative “agency” and the addition of Comment [4] that highlights the cross-reference to
Rule 4.1.
Made