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
