North Carolina Extends Rule Requiring Disclosure of Exculpatory Information to ALL Lawyers

It’s been quite a week for my Dad.

Not only did he share a great story that I recounted as I presented Justice Dooley with the VBA’s Matthew Katz Award for Judicial Independence, he also cued me into a new ethics rule in North Carolina.  (My dad moved to NC several years ago).

Most of you have a general understanding of the “Brady Rule” or “Brady violations.”*   Brady v. Maryland is the case in which the United States Supreme Court held that the government violates an accused’s right to due process when it withholds exculpatory evidence that is “material either to guilt or to punishment,” and regardless of whether the prosecutor acted in good or bad faith.

As do all states, Vermont has a disciplinary rule that imposes duties upon prosecutors.  It’s Rule 3.8.  Rule 3.8(d) requires a “prosecutor in a criminal case”

  • “[to] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by order of a tribunal.”

I’ve consistently stated that, in my opinion, Rule 3.8 is more broad than Brady.  The ABA’s Standing Committee on Ethics & Professional Responsibility is of the same opinion.  Similarly, in a disciplinary case decided in 2015, the D.C. Court of Appeals held that Rule 3.8 “requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements” of Brady and its progeny.

I bolded “prosecutor in a criminal case” for a reason.  In Vermont, and every other state, the disclosure requirement applies to the prosecutors who are prosecuting a case.  In 17 states, the rule applies to information discovered after a conviction.  But again, only to prosecutors.

Until now.

My dad mentioned it to me when we spoke two days ago.  I looked it up this morning, and he was right.  As the ABA Journal reports here, North Carolina adopted a rule that requires all lawyers, including lawyers in private practice, to reveal exculpatory evidence of which they become aware after a conviction.  More specifically, the rule, which is here, applies when

  • “a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted.”

The rule requires the lawyer to disclose the evidence or information to the appropriate prosecutorial agency, as well as to the state or federal public defender.

As more wrongful convictions come to light, I expect more states will follow North Carolina’s lead.

In any event, a good weekend for my dad.  And it might get better.  Not only is he rooting for North Carolina, he’ll win a not insubstantial amount of money in my pool if South Carolina wins it all.  He’s got things pretty well covered.


*Speaking of the Brady Rule and Brady violations, long-time readers know my feelings on Tom Brady, his role in the genesis of this rule, and the vast, repeated, and numerous ethics violations committed by Brady and the Patriots.







3 thoughts on “North Carolina Extends Rule Requiring Disclosure of Exculpatory Information to ALL Lawyers

  1. Wow! That’s a great rule in concept. However, given that such information may often come from a client and thus be exempted from disclosure due to the exceptions to the rule, I wonder how often it would be used. Nevertheless, I can envision a client saying, “I’m really sorry Defendant is in jail. I know who committed the crime.” Attorney, “How do you know that?” Client,”because my buddy Y was bragging about doing it at the bar, and dodging the bullet.” I think you’d still need to get more information and talk to your client about the disclosure rule, but if you were convinced that the information was accurate and your client wouldn’t be implicated, then disclosure would apply.


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