Prosecutors and defense attorneys are accustomed to their adversarial relationship.

The battles are typically waged in a courtroom, over a single person charged with a crime. But this time, the battle concerns all criminal defendants in Tennessee. The Tennessee Board of Professional Responsibility is a body created by the state Supreme Court to supervise the ethical conduct of attorneys. Unlike most of the seemingly mundane issues that come before the board, one ethics opinion issued earlier this year and up for debate at a Sept. 14 meeting of the body has caught the attention of a wider audience. Both The Tennessean and national criminal justice publication The Marshall Project have covered the debate.

The stakes, prosecutors and defense attorneys argue, are high.

The ethics opinion, which was issued by the Tennessee Board of Professional Responsibility in March and will be under further consideration at the Friday meeting, states that prosecutors have two obligations when turning over information about a case to a defendant. One, their constitutional obligation, is governed by the U.S. Supreme Court’s 1963 decision in Brady v. Maryland, which says prosecutors are required to turn over evidence favorable to the defense when it is deemed material to the case. The second, an ethical obligation, is what’s up for debate.

According to the ethics opinion, “a prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady.”

To that end, the board says, “Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense … the prosecutor ordinarily must disclose it as soon as reasonably practicable.” Violation of board rules could lead to the suspension of legal licenses or disbarment, a punishment rarely applied to prosecutors.

For defense lawyers, it’s simple.

“Defendants should be entitled to know all the evidence against them so they can investigate a case where they stand to lose one of the most fundamental things we all have a right to, which is our liberty,” says Martesha Johnson, the newly elected Public Defender of Metro Nashville.

Prosecutors, however, are displeased. Both the Tennessee District Attorneys General Conference and the state’s three U.S. attorneys, on behalf of the U.S. Department of Justice, have registered their opposition to the draft opinion. The district attorneys argue in a letter that the new interpretation “would impose inconsistent disclosure obligations on prosecutors and only create confusion.”

In urging the board to withdraw the opinion, the U.S. attorneys point to potential harm the new opinion could cause for witnesses to and victims of crimes. Immediately disclosing information about witnesses or victims to defendants could cause embarrassment or danger, they argue.

“Not surprisingly, protecting the rights and interests of these diverse stakeholders sometimes involves difficult tradeoffs,” the U.S. attorneys write. “This is particularly true in the area of criminal discovery, where the interests of defendants will sometimes be in tension with those of victims and witnesses.”

The defense attorneys point out that there’s already a remedy to this hypothetical problem: requesting a protective order from the judge limiting what can be released to the defendant. But the U.S. attorneys call that remedy “woefully insufficient.” The U.S. attorneys also express worry that the opinion will be weaponized by the defense. They argue that the board must disclose who requested the opinion.

“If it was an opinion requested or urged by a member of the criminal defense bar, rather than by a prosecutor, that would tend to confirm the intended use of the Opinion as a tactical weapon,” they say.

The district attorneys, including Davidson County’s Glenn Funk, call the dual standards “an unnecessary trap for prosecutors” and suggest that they can police themselves.

“Prosecutors across the state have not ignored the critics who have decried the discovery practices of prosecutors in criminal cases, but instead have been proactive in their commitment to raise the bar in this precise area of the bar,” they write, including by establishing a committee and distributing new training materials.

Both sides of the argument alternate between two contentions: that the job of both parties is to seek justice rather than victory in court, and that the other side is willfully stymying that goal.

“In this day and age, in 2018 with everything we know about people who have been wrongfully convicted of crimes based upon hidden evidence, undisclosed evidence and prosecutorial misconduct, it’s surprising to me that there’s been so much pushback by Tennessee prosecutors,” says Dawn Deaner, who recently retired after a decade as Nashville’s Public Defender. “In a system where the prosecutors’ obligation is to seek truth and to seek justice, to then be opposed to honoring an ethical obligation to just provide information, it’s surprising to me.

“Maybe it shouldn’t be.”