State Bar Moves Against Nifong

The Associated Press is reporting that the North Carolina State Bar has filed formal charges against Durham County District Attorney Mike Nifong.

"The North Carolina bar filed ethics charges Thursday against the prosecutor in the Duke lacrosse case, accusing him of breaking four rules of professional conduct when speaking to the reporters about the sensational case.

"The punishment for ethics violations can range from admonishment to disbarment.

"Among the rules District Attorney Mike Nifong was accused of violating was a prohibition against making comments "that have a substantial likelihood of heightening public condemnation of the accused."

"The charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.

"In a statement, the bar said it opened a case against Nifong in March 30, a little more than two weeks after the party where a 28-year-old student at North Carolina Central University hired to perform as a stripper said she was raped. " ABC

It should be noted that the Discipline Hearing Commision is the venue for the most serious cases referred by the State Bar's Grievance Committee.

"There are a number of actions that the Grievance Committee can take, depending upon the facts of your case. It can dismiss the case, issue a letter of caution or a letter of warning, or impose an admonition, reprimand, or a censure (see Definitions for explanations of these actions). In the most serious cases, the Grievance Committee may refer the case for trial before the Disciplinary Hearing Commission. When a decision is made in your case, you will be notified in writing." NC State Bar

Now that the complaints against him have progressed to the point where the NC State Bar will prosecute them before the Discipline Hearing Committee, DA Nifong can look forward to a two phase trial before the Committee which will consider whether there is "clear, cogent, and convincing" evidence of his misconduct and, if so, determine his punishment.

"The Disciplinary Hearing Commission ( DHC ) acts as the North Carolina State Bar's trial court. It is composed of 12 lawyers and 8 public members, who sit in panels of three to hear complaints of lawyer misconduct referred to it by the Grievance Committee. The DHC can also hear reinstatement petitions from disbarred lawyers and claims that a lawyer is disabled. All hearings before the DHC are open to the public. You can get a copy of the commission's trial schedule from the NC State Bar's website or by calling our office (919.828.4620). If your complaint is referred to the DHC for trial, bar counsel handling the case will let you know and will tell you if you will need to testify at the trial.

"In a trial before a panel of the DHC , the burden of proving the respondent lawyer violated a Rule of Professional Conduct is on the NC State Bar. The NC State Bar must show this by clear, cogent and convincing evidence. The trial occurs in two phases. In the first phase, the DHC panel hears evidence and then decides whether the charges of misconduct against the respondent have been established.

"If misconduct is found by the DHC panel, the second, or disciplinary phase of the trial, takes place. In this phase, the DHC panel considers evidence and decides what is the appropriate discipline to be imposed for the misconduct. Depending on what the evidence shows, the DHC can dismiss the complaint or issue a letter of caution, letter of warning, admonition, reprimand, or censure (see Definitions for explanations of these actions). It can also suspend the lawyer's license or disbar the lawyer. If the lawyer's license is suspended, the commission can “stay” or halt all or part of the suspension on various conditions, which creates a kind of probationary sentence."

The seventeen page complaint which includes charges of dishonesty, fraud, misrepresentation, and deceit, details over 40 extrajudicial statements made by the District Attorney, primarily during March and April. The charges do not appear to encompass the potentially more serious charges regarding his misrepresentations made to the court, and efforts to conceal evidence, both of which were brought to light recently.

"The complaint concludes that Nifong should have known his conduct was "prejudicial to the administration of justice" and that "Nifong engaged in conduct involving "dishonesty, fraud, deceit or misrepresentation." N&O

The charges against Nifong included violations of Ethics Rules Violations of 3.6(a), 3.8(f) 8.4(c) and 8.4(d).

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

With District Attorney Nifong due to be sworn into office on January 2, it appears that one of his first tasks as duly elected DA will be to face a trial himself.

State Bar v. Nifong