Thursday, December 28, 2006

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


Anonymous said...

"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 accuser."

Typo accuser should be accused

Victim in Massachusetts said...

Well the NC State Bar just couldn't sweep this one under the rug. With all of the National Media and bloggers his days are coming to an end. Couldn't have happened to a nicer jerk.

Kemper said...

Well, damn it, I told you before Christmas, sorry I am three days late.
Note that Nifungu has only 20 days to respond. That brings him to the Jan m16-18 Discplinary meeting of the Bar.


Anonymous said...

What does it mean at the end where it says he can be taxed for the costs of the proceedings? You mean, he might actually have some financial responsibility for this mess?

bill anderson said...

My guess is that he is going to wish that he had eaten the $30 grand he loaned his campaign. In finance, we have a term called the "winner's curse." I think it will apply here.

Anonymous said...

Hey, I just wanna know when the ground is supposed to start SHAAAAAAKINNNNNG. Is it SHAAAAAAKING yet?

Anonymous said...

I think the Durham Herald Sun's countdown on their top ten stories of 2006 may be premature. If charges by the NC State bar against the newly elected DA doesn't make it to the top, then this paper is truly dysfunctional.

But PT Barnam would be proud.

Anonymous said...

"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 accuser."
Note that in later versions, "accuser" has been corrected to "accused"

Tony Soprano said...

STATE bar NOT the DURHAM bar -

The OUTSIDERS will Stop at Nothing!!

Thank God for OUTSIDERS!!!


Anonymous said...

It is about time Nifong is held responsible for his outrageous actions!
Have you noticed how quiet Nifong has been this week, hiding behind a note posted on his office door?
Where are his supporters like Victoria Peterson, Gottlieb etc.
To the Duke Three- just hang in ther alittle longer. Rmember revenge is sweet!


Guy Fox said...

11:19, I disagree. I don't hope Nifong's family is miserable this holiday season. They did nothing wrong, much like the Duke 3. However, Nifong is probably just beginning to get a taste of the hell to which he's subjected the Duke 3. Who knows? Maybe there'll finally be some justice. I certainly hope so. I also predict something that will have a bit of poetry to it: In the historical heartland of the tobacco industry, another massive settlement will come down.

Anonymous said...

Nifong warded this off for a long time - but when it starts to go - it goesquickly and big time. There has to be a lesson somewhere. Any thoughts? I do not wish anyone a miserable anything. Karma will take care of Nifong and the other enablers - just as KC and Bill A's lights have come out from under the bushel and will shine for a long time. Jack Parr said " People tear their own tin foil" and Mike certainlt contributed to his own down fall.

Anonymous said...

There's no doubt Nifong had this coming to him, but there are going to be innocents hurt by it as well. I'm thinking mainly of Nifong's young son, who presumably also carries the Nifong name. This boy did absolutely nothing wrong, yet he will have to carry the shame and dishonor his father has attached to his name for the rest of his life. It will be a heavy burden. I will pray for this young man (as I have been praying for the other young men wronged by Nifong), and I hope others will as well.

Anonymous said...

Three cheers for LS, the other fabulous bloggers, the outsiders who would not be silent, and the NC Bar!

Who said Mr. Nifong did nothing wrong?!? Are you KIDDING!?! And would you like to explain?


Anonymous said...

Observer, you're apparently not very observant. Reread the post please.

theman said...

All you people have done is force Mr. Nifong to reveal the evidence he has. He will and skate right through this and come out winner. The prosecution will continue and the three hooligan's will end up behind bars for many, many years.

Anonymous said...


He should have revealed that evidence long ago instead of conspiring to hide it in order to hide the defendents innocence. He has violated a whole shloo of laws--I find it funny that you have no problem with a man who is clearly not only violating the law, but the constitution and his job as a lawyer getting off the hook and not going to jail, but 3 "hooligans" who have beyond proven they are innocent deserve to go to jail in your eyes. That's real justice.

Good thing you're not a lawyer of a judge. We'd all be fucked.

Guy Fox said...

5:34, Theman doesn't believe his own garbage. He's a troll. This case is the Gong Show, and it looks like the NC State Bar is taking the role of Chuck Barris.

Anonymous said...

Yes, I feel sorry for NIfong's children. Can you imgaine how emabarrassing to them when your surname becomes a national joke, and a new verb!
Nifong's wife and sister were full supporters. They can stay on the Titanic.

Guy Fox said...

For some reason, his wife and his sister love the putz. He may even be a good husband, father, son, and brother. However, at issue is not the type of husband, father, son, or brother he is. At issue is the type of prosecutor he is and what he's done to three other families' sons.