Legal Practice Tip

Legal Practice Tip: Prosecutor’s Ethical Duty to Disclose Broader than Brady

The Tennessee Board of Professional Responsibility issued an ethics opinion explaining that a prosecuting attorney’s ethical duty to disclose favorable information to the defense is broader than that required under federal constitutional law.“Tennessee Rule of Professional Conduct 3.8(d)" is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor's legal disclosure obligations.  This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady.  Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or falls within RPC 3.8( d)’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.” Formal Ethics Opinion 2017-F-163.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.
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Appellate Practice Tip #3: Interlocutory Appeals and Rule 54

There is always a certain amount of confusion about the fact that the Tennessee Rules of Civil Procedure contain a rule, Rule 54.02, which seems to provide for an interlocutory form of relief while the Tennessee Rules of Civil Procedure, contains Rules 9 and 10, which specifically provide for interlocutory relief. While there are some similarities, the factors to be considered with respect to the appropriateness of these types of appeals are different. Technically, under Rule 54.02, the Tennessee Rules of Civil Procedure, when more than one (1) claim for relief is present in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the Court may direct an entry of final judgment as to one or more, but fewer than all the claims or parties.

However, and this is extremely important, the trial court must make an express determination that there is “no just reason for delay” and must expressly direct the entry of a judgment on specified claims and/or as to specified parties. The Rule is clear and our courts of appeals have been steadfast in enforcing the requirement that in the absence of this determination and direction, any order or other forms of decision, however, designated, that adjudicates fewer than all the claims or rights and liabilities or fewer than all the parties, shall not terminate the action as to any of the claims or parties and the order or another form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. The requirements of Tennessee Rules of Appellate Procedure 9 and 10 are different and savvy practitioners should review TRCP 54 and TRAP Rules 9 and 10 to determine which is the most tactically advantageous in their situation.  

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 

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Appellate Law Section Connect


We had a packed house for the TBA Supreme Court Academy, which the Appellate Practice section held in collaboration with the UT College of Law on Sept. 6. I would like to thank the Supreme Court, Professors Lucy Jewel and Penny White, and the advocates who argued so well and stayed afterwards to discuss the argument and their preparation for the argument. 



Appellate Practice Tip: Appellate Mediation

Pursuant to Rule 34 of the Tennessee Rules of Appellate Procedure, parties may request voluntary mediation while the case is pending in the Court of Appeals. Parties desiring to engage in mediation should file a joint stipulation requesting suspension of the appeal with the clerk of the appellate courts. Upon the filing of a timely joint stipulation, the time for preparing the transcript or statement of the evidence, the record on appeal and the brief shall be suspended for no more than 60 days to enable the parties to mediate their dispute.
The provisions of the voluntary mediation rule, however, do not apply to appeals required to be expedited by statute, rule or order of court, appeals in which the constitutionality of a statute or rule or the constitutionality of an application of a statute, ordinance or rule is an issue, or appeals involving the imposition of criminal contempt sanctions.
If the mediation is successful, the parties should file a Notice of Voluntary Dismissal of the appeal.
Note: The practice in state court is different than the practice in the Sixth Circuit Court of Appeals. In the Sixth Circuit, absent good cause, the parties are expected to participate in mediation, which is conducted by a sixth circuit mediator who is an employee of the Sixth Circuit Court of Appeals.
In the last Legal Practice Tip, we discussed cost and stay bonds. We have been advised that the clerk of the appellate court will soon begin collecting court costs on the front end, so no cost bond will be posted. Stay bonds will continue to be handled first in the trial court, subject to review on appeal.
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