Federal prosecutors often take the position that the “government’s” obligation to disclose potentially exculpatory information in “its” possession extends to the prosecutors’ own files but not the files of other agencies such as the Securities and Exchange Commission (“SEC”). The Ninth Circuit’s recent opinion in United States v. Reyes—reversing what was reportedly the first criminal conviction for backdating stock options—included a contrary point of view. In Reyes, the Ninth Circuit stated: “The prosecution is legally charged with responsibility for information uncovered in its civil investigations and may be required to disclose it in criminal cases that it prosecutes” and that the prosecution “is charged with knowledge of the parallel SEC investigation.”1
In July, before the Reyes opinion came down, the ABA issued a formal ethics opinion reemphasizing prosecutors’ independent ethical obligations to disclose evidence and information potentially favorable to the defense. The opinion highlights that a government lawyer’s ethical obligation to disclose exculpatory information goes beyond the constitutionally mandated Brady doctrine.
