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San Diego Law Review

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In the spring of 2009, I sent Fred Zacharias an e-mail to let him know that the American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility, on which I was serving, was working on an opinion on prosecutorial ethics and to suggest that once it was published, the opinion might be fodder for our next article. Over the preceding decade, Fred and I had coauthored five articles on the regulation of prosecutors,' and various others on the regulation of lawyers in general, but at that time, we had no work in progress and had been out of touch for a while. It was time to pick up a summer project. The subject of the ABA committee's inquiry in what later became Opinion 09-454 was the model ethics rule on prosecutors' disclosure obligations. The rule calls upon a prosecutor 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. The rule goes back four decades. The ABA first adopted it in 1969 as Disciplinary Rule (DR) 7- 103(B) of the Model Code of Professional Responsibility, and then carried it over into Rule 3.8(d) of the ABA Model Rules of Professional Conduct (ABA Model Rules).s But this would be the committee's first opinion addressing this rule and it would help fill a void. Although most state courts have incorporated the rule or a variation of it into their ethics codes, few state bar association ethics committees or courts had previously interpreted the rule's state counterparts.