By Douglas J. Brocker and Deanna S. Brocker
Editors’ Note: This article first appeared in the Wake County Bar Flyer and is reprinted with permission from the authors.
“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.” Comment , Rule 3.8, Rules of Professional Conduct (RPC or the Rules). No other legal ethics issue resonates as deeply with the general public as when a prosecutor misuses or abuses this power and responsibility. As a result, no other issue has the potential to threaten or undermine lawyers’ privilege to regulate themselves if the public perceives that such cases are not being handled properly.
The recent disciplinary case against Durham District Attorney Michael B. Nifong (Nifong) involved numerous interesting issues of legal ethics and self-regulation. This matter was tried before the Disciplinary Hearing Commission (DHC), the trial body of the North Carolina State Bar. [Doug Brocker was] retained as special counsel to prosecute the Nifong case, along with the State Bar’s counsel, Katherine Jean.
In the sections below, [the Brockers] explore the three main sets of important ethical issues involved in the Nifong disciplinary case: (1) the prejudicial effect of extrajudicial statements; (2) the need for full and timely disclosure by prosecutors of all evidence and information, particularly potentially exculpatory evidence; and (3) the critical importance of truthful statements by prosecutors to the court, defense counsel, and others. Nifong’s systematic abuse of his prosecutorial power and discretion by violating all three of these important ethical principles resulted in his unprecedented disbarment as a sitting district attorney (DA).
This section focuses on the prejudicial nature of the pretrial statements made by Nifong to the media and the constitutional bases for barring such statements. The Durham prosecutor’s investigation and eventual charges against three Duke lacrosse players were paraded on local and national television and in all forms of public media. Nifong, a virtually unknown DA at the time, granted interview after interview touting his confidence that a horrendous crime had taken place on March 14, 2006 at the house rented by three Duke lacrosse players. Over a year later and after a five-day trial, a panel of the DHC concluded that Nifong’s conduct violated, among other Rules, 3.6(a) and 3.8(f) of the RPC, which concern pretrial publicity. The DHC specifically found that his extrajudicial comments were motivated by a political reelection campaign for the district attorney of Durham County.
Prohibited Pretrial Publicity and Its Constitutional Foundations
Rule 3.6(a) prohibits a lawyer from making 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(f ) prohibits prosecutors from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused. It is clear that both rules are designed to protect the right to a fair trial by preventing trial by media. The prohibitions in these rules are based on essential, constitutionally guaranteed rights.
Right to a Fair Trial. The prohibition contained in Rule 3.6 is designed to preserve and protect the Sixth Amendment constitutional right to a fair trial by an impartial jury as noted in Comment  to the Rule. If the jury pool is tainted by one-sided media coverage that shapes the resulting public opinion, this constitutional guarantee is eroded or nullified. Exactly 100 years ago, Supreme Court Justice Oliver Wendell Holmes, addressing the right to a fair trial, wrote:
The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.
Patterson v. Colorado, 205 U.S. 454 (1907). Justice Holmes’s comments, of course, were made before the invention of the broadcast media and Internet, which pose significant additional risks to constitutional rights if the necessary prohibitions and limitations on extrajudicial comments are not strictly observed.
Comment  to Rule 3.6 sets forth specific but nonexclusive examples of the types of statements which are presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding. Several of these specific examples are based on other important constitutional rights and guarantees in criminal cases, such as a suspect’s right to silence, right to counsel, and the presumption of innocence.
Rights to Silence and Counsel. For example, Nifong made repeated statements concerning Duke lacrosse team members’ silence or refusal to make statements to law enforcement authorities. Specifically, Nifong commented to the media, “If it’s not the way it’s been reported, then why are they so unwilling to tell us what, in their words, did take place that night?” Section 2 of Comment  to Rule 3.6 specifically prohibits an attorney from commenting on a defendant’s or suspect’s refusal or failure to make a statement. This prohibition is based on a criminal defendant’s Fifth Amendment right to remain silent and against self-incrimination.
The basis for the rule prohibiting the use of a suspect’s silence against him is that it runs counter to the presumption of innocence. This presumption, which is fundamental to the criminal justice system, prohibits any attempt by the state to infer or otherwise suggest in any way that a suspect’s silence is motivated by guilt. Repeated comments made by Nifong, such as the one noted above, suggested that guilt should be presumed from the players’ alleged silence.
Some of Nifong’s most egregious statements were directed at the players’ exercise of their Sixth Amendment right to counsel. For example, Nifong commented, “And one would wonder why one needs an attorney if one was not charged and had not done anything wrong.” This extrajudicial statement suggests that the only reason someone not charged with a crime would hire an attorney is that they are guilty. Of course, another good reason to hire an attorney is to adequately defend yourself if you were unjustly accused or charged. Ironically, we now know that this is precisely what occurred in the Duke lacrosse cases.
Presumption of Innocence. Section 4 of Comment  to Rule 3.6 specifically prohibits an attorney from making extrajudicial statements about his or her “opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.” Additionally, Section 6 of Comment  states that a prosecutor cannot even comment that a defendant has been charged with a crime unless he or she also explicitly states that it is merely an accusation and that the defendant is presumed innocent until proven guilty. In the face of such clear prohibitions, Nifong made repeated extrajudicial statements such as:
- “There’s no doubt in my mind that she was raped and assaulted at this location.”
- “The guilty will stand trial.”
- “I am convinced there was a rape.”
Both sections 4 and 6 of Comment  are based on the essential principle of the presumption of innocence. This principle is fundamental to our entire system of justice and mandates that the defendant be accorded procedural due process and that guilt be decided on the basis of sufficient evidence, presented only in a court of law, not in the media. Nifong’s extensive extrajudicial statements effectively nullified the defendants’ essential constitutional rights and guarantees to silence, counsel, and the presumption of innocence.
Condemnation of the Accused. Rule 3.8(f ) of the RPC is the counterpart to Rule 3.6 and imposes additional obligations on criminal prosecutors. The rule provides, “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,” a prosecutor shall not make extrajudicial comments “that have a substantial likelihood of heightening public condemnation of the accused.”
Nifong stated to the press that the players were a “bunch of hooligans” and that the crime was “reprehensible, abhorrent” and “racially motivated,” among numerous other similar comments. These statements served no legitimate law enforcement purpose. They were not designed to request assistance from the public in obtaining evidence, to inform the public of the nature, extent and status of the investigation, or to warn of imminent danger or substantial risk of harm to the public by a suspect at large. (See Rules 3.8(f ) and 3.6(a).) By his own admission, Nifong’s statements were intended to put pressure on the players to communicate with law enforcement despite advice from counsel to remain silent. In other words, Nifong intentionally increased condemnation of the players to overcome the assertion of their constitutional rights.
“[Nifong’s] comments certainly heightened public condemnation of the players. They were shunned and ostracized by the media, their own university, fellow students, and community; in short, they became pariahs.”
His comments certainly heightened public condemnation of the players. They were shunned and ostracized by the media, their own university, fellow students, and community; in short, they became pariahs. One of the players actually had death threats shouted at him in the courtroom during his initial appearance. It is difficult to imagine a worse example of extrajudicial comments heightening public condemnation of the accused. Nifong’s interviews with the local and national media outlets would have made it difficult to find an impartial jury anywhere. At one point, Nifong commented that the case would have to be moved to China to avoid the adverse effects of pretrial publicity.
Applicability of the Rule to Civil Cases and Permitted Speech. Rule 3.6 applies to all kinds of cases subject to trial in a court of law or adjudicative forum. Certain cases, however, may be less sensitive to extrajudicial speech. Civil cases will be less affected than criminal cases, and bench trials, arbitrations, or administrative hearings will be the least affected. While there is an old Code of Professional Responsibility opinion that states that the trial publicity rule does not apply to cases on appeal, it is doubtful this is still good law.
Notwithstanding the general prohibition against materially prejudicial statements to the media in Rule 3.6(a), Rule 3.6(b) specifically permits extrajudicial speech in a number of limited areas; including most significantly any matters of public record. In civil cases, the public record will always be a safe harbor. If the language in a press release is the same language that is used in a pleading or other court document, the rule specifically allows the public dissemination of that language. An attorney, however, should strictly adhere to public record information and be careful not to include personal opinions and the like. A good rule of thumb: If a case is pending (anywhere) and you are unsure whether something is contained in the public record, the better course is to remain mum.
An Exception: When Can You Speak?
There also is an exception for certain speech that would ordinarily raise a question under Rule 3.6. If an attorney believes that his client has been prejudiced by extrajudicial statements made publicly by another party, opposing counsel, or third persons, the attorney may make public statements in response; to the extent he believes it is necessary to avoid undue prejudice to his client. Such statements must be narrowly tailored to mitigate the harm created by the prior statements, and the prior statements must have been unprovoked and solely initiated by the other party. The justification, as stated in Comment  to Rule 3.6, is that “when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.”
In light of the extensive and prejudicial statements made by Nifong in the Duke lacrosse cases, defense counsel had wide latitude in making responsive statements under this exception. Additionally, Rule 3.6 does not prohibit statements by a client directly. While an unusual and potentially risky move, one of the Duke defendants held a press conference announcing his innocence and the innocence of the other two indicted players immediately after his indictment. Even without this exception, the rule would not prohibit such comments by the defendant or any other party. Nonetheless, lawyers should not encourage their clients to make extrajudicial statements that would otherwise violate Rule 3.6.
The State Bar evidence in Nifong established that a prosecutor with more than 27 years of experience placed his prosecutorial and political career above his duty to his client, the people of the state of North Carolina. Nifong’s personal interests interfered with the ability to exercise professional judgment and motivated a career prosecutor to violate his unwavering duty to seek justice, not convictions. Nifong’s repeated extrajudicial statements stripped the defendants of their essential constitutionally guaranteed rights to silence, counsel, the presumption of innocence, and the right to a fair trial. His actions effectively nullified the most important principles underlying the American system of criminal justice. Preserving this system demanded the most severe disciplinary action—disbarment.
A New Standard for Ethical Discovery Practices?
In 2004, the State Bar brought disciplinary proceedings against two former state prosecutors for failing to provide exculpatory evidence to defense counsel during a capital murder trial, which resulted in a death sentence (hereafter, “Hoke & Graves”). The DHC reprimanded these two lawyers for their conduct. The DHC’s decision in Hoke and Graves created a firestorm of criticism. In the wake of Hoke and Graves, the State Bar reconsidered and modified two ethics rules: Rule 3.4, dealing with discovery practices in all cases, and Rule 3.8(d), affecting the duty of prosecutors to disclose information to defense counsel. These amendments went into effect on November 16, 2006. Both revised rules became a primary focus of the State Bar’s recent disciplinary case against Nifong, whose misconduct occurred both before and after the adoption of these new rules. State Bar v. Nifong, 06 DHC 35.
Revisions to Rules 3.4(d) and 3.8(f)
Rule 3.4(d) requires that lawyers make a reasonably diligent effort to comply with a legally proper discovery request. The State Bar’s recent amendment to this rule added the requirement that a lawyer must disclose evidence or information that the lawyer knows or reasonably should know is subject to disclosure under applicable laws, evidentiary or procedural rules, or case law. This modified language really did not create a new standard of conduct for lawyers, but merely codified an existing obligation to follow laws and rules pertaining to discovery practices. It did create, however, a new basis upon which to impose discipline for violating those existing obligations.
“Nifong’s personal interests interfered with the ability to exercise professional judgment and motivated a career prosecutor to violate his unwavering duty to seek justice, not convictions.”
Although Rule 3.4 applies to all attorneys, Rule 3.8 is applicable only to criminal prosecutors. Amended Rule 3.8(d) requires that a criminal prosecutor shall, “after reasonably diligent inquiry make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” Rule 3.8(d) (revisions in italics). This rule change was intended to clarify that prosecutors had an affirmative duty to know and disclose what is in the criminal file. A prosecutor may not merely close his eyes or fail to review information contained in his file and thereby claim no rule violation occurred by failing to turn over information he did not know existed. A comment to Rule 3.8 adds, “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” Comment , Rule 3.8
Discovery Violations in Nifong Case
The disciplinary proceeding against Nifong involved a particularly egregious violation of the discovery rules. The DHC found that Nifong had violated both the previous and amended Rules 3.4 and 3.8 in several respects by failing to provide defense counsel with: (1) a complete report of all DNA testing and examinations performed by its privately retained DNA lab, and (2) memorializations of conversations he had with the head of the DNA lab discussing the results of the DNA testing. In so doing, he failed to disclose evidence or information that he knew or reasonably should have known was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions, in violation of both the newly amended provisions of Rules 3.4(d)(3) and 3.8(d), and the former provisions.
The information Nifong failed to disclose in violation of Rules 3.4 and 3.8 was central to the case. It concerned the existence of DNA found on the alleged victim’s intimate person and clothing from numerous unidentified males, which did not match any of the lacrosse players tested, including the three indicted defendants. The state’s outside expert told Nifong about the multiple unidentified male DNA during three in-person meetings. Nifong requested the expert to prepare a written report of the matches between DNA found and evidence items, which necessarily excluded the unidentified male DNA. Thus, the written report Nifong ultimately received and provided to defense counsel excluded this crucial evidence.
Defense counsel eventually discovered this exculpatory information among the extensive underlying scientific data Nifong was eventually ordered by the presiding judge to provide them over six months later. The discovery and disclosure of this information ultimately led to the disciplinary charges against Nifong, his recusal from the criminal case, the eventual dismissal of all charges against the three indicted players, and a declaration of their innocence by the North Carolina attorney general. Nifong’s failure to disclose this critical information also violated his quintessential duty as a prosecutor to seek justice, not convictions.
Scope of Ethical Discovery Rule Changes
Because the amended Rules 3.4 and 3.8 make it an ethics violation to fail to comply with discovery obligations, an important question is whether every violation of a discovery statute, rule, or order also constitutes a violation of the RPC. Neither the ethical rules or comments explicitly answer this question, but the logical answer must be no. Certainly, the State Bar does not intend to police all discovery disputes.
Rule 3.4(d) and Rule 3.8(d) include “reasonably diligent effort” and “reasonably diligent inquiry” standards. These standards are inconsistent with an interpretation of these amended rules that would make every discovery transgression a violation of the RPC. As long as an attorney makes a reasonably diligent effort or inquiry, a failure to provide information requested in discovery should not constitute a violation of the RPC.
Additionally, interpretation of discovery rules and procedure is always a matter ripe for debate. Thus, if an attorney has a good-faith basis for not providing certain information, such as an applicable evidentiary privilege, there should be no disciplinary violation, even if a court later determines the attorney’s judgment was incorrect. It is unlikely that the State Bar would impose discipline if an attorney has made a reasonable and good faith judgment and has provided the other side with enough information about the basis for withholding information.
On the other hand, the amended Rule 3.4 clarifies that if a lawyer has reason to believe the client is withholding information, “The lawyer may not rely solely upon the client’s assertion that the discovery response is truthful or complete.” Comment , Rule 3.4. The lawyer must be reasonably diligent in making inquiry of every client regarding disclosure requirements arising from applicable law, and must “impress upon the client the importance of making a thorough search of the client’s records and responding honestly.” Id. Relying solely on a client’s false assertions or incomplete discovery responses without appropriate inquiry potentially could lead to disciplinary action by the State Bar.
What can we take away from the Nifong disciplinary matter and the recent amendments to the ethics discovery rules? The amendments to Rules 3.4 and 3.8, incorporating a duty to comply with discovery obligations recognize an important principle. The discovery process is fundamental to the truth-seeking function of the judicial system. With these amendments, it is clear that certain discovery rule violations can be the basis for discipline. The Nifong decision establishes that where a discovery violation concerns a lawyer’s intentional withholding of critically important information, such as exculpatory information in a felony criminal case, very serious disciplinary action is likely.
In contrast, a reasonable interpretation of these rule amendments suggests that not all discovery violations will lead to disciplinary investigation and action. A lawyer who makes a reasonable effort to comply with discovery requests or fails to provide information based on a good-faith legal basis for doing so will not be subject to discipline. The basis for failing to disclose information, however, should always be disclosed clearly to the requesting party or opposing counsel to preempt any question about propriety or assertion of concealment. Additionally, a lawyer must make reasonable inquiry to ensure that a client is providing complete and accurate information and disclosures. Willfully blind reliance on a client’s assertions is insufficient.
The Truth Set Them Free
It’s a simple enough principle: “Always tell the truth.” As lawyers, honesty and integrity are central to our ethical duties. We are obligated to tell the truth—to the courts, to each other, to our clients, to the State Bar, and in every aspect of our practice. These obligations are reflected in numerous specific sections of the RPC:
- Rule 3.3(a)(1) – requires candor toward all tribunals
- Rule 4.1 – mandates truthfulness in statements to others
- Rule 8.1 – governs statements in disciplinary matters and Bar admissions
- Rule 8.4(c) – prohibits any dishonesty, fraud, deceit, or misrepresentation
In the Nifong disciplinary proceeding, the DHC concluded that the former DA engaged in repeated misconduct that violated each one of the above rules. State Bar v. Nifong, 06 DHC 35. For example, Nifong provided the defense counsel with a written DNA report that did not contain numerous results finding multiple unidentified male DNA on the alleged victim and her intimate clothing. Contemporaneously, he served and filed a written response representing to the court and defense counsel that he was not aware of any other exculpatory information. He previously had had multiple meetings with his DNA expert in which this exculpatory information was discussed in detail.
In response to repeated requests by defense counsel, Nifong consistently represented that all the DNA results were in the written report and that he had no discussions with his experts regarding these results. At a subsequent hearing, Nifong represented in direct response to an inquiry from the presiding judge, that his expert did not discuss any results other than what was contained in the written report. The clear, cogent, and convincing evidence at the hearing demonstrated these repeated representations to be false.
After defense counsel independently discovered the existence of this evidence, Nifong falsely represented or implied to the court and defense counsel that he was not aware of the existence of this unidentified male DNA that had been excluded from the written report. He later repeated that misrepresentation, and others, to the State Bar during its investigation of his conduct. Despite evidence to the contrary, Nifong persisted with these misrepresentations through his sworn testimony at the trial before the DHC. Nifong wove this web of deception in an attempt to conceal the existence of clearly exculpatory information that he had withheld from defense counsel.
Representations Based on Personal Knowledge
Nifong’s attempted defense against these allegations raises an interesting distinction in the rules concerning misrepresentations. Nifong contended that while his representations to the court turned out to be untrue, he did not make an intentional misrepresentation. He claimed that he never read the written report from his outside DNA expert. This report concerned critical evidence in the most important case of his career—one that garnered unprecedented national media attention. Nifong further contended that, despite repeated and continuing requests from defense counsel for all the DNA results and tests performed and inquiries from the court, he never went back and read the DNA report before making his various misrepresentations to the court.
Even if Nifong’s story had been credible, his misrepresentations would still have constituted a violation of the rules. Under the RPC, there is a difference between a lawyer’s duty to the tribunal when he makes representations based upon his own personal knowledge and when he presents assertions made by the client.
Ordinarily, when a lawyer files pleadings containing allegations made by the client or makes statements to the court based upon a client’s representations, the lawyer is not deemed to have personal knowledge of the veracity of the information presented. A lawyer need not fully substantiate the facts presented before filing suit or making such statements. Comment , Rule 3.3.
In contrast, when an attorney makes a statement to a court based upon his own personal knowledge, he must make reasonably diligent inquiry into the accuracy of the statement before making it if there is any doubt as to the statement’s veracity. If reasonably diligent inquiry has not been made, then the attorney has the obligation to disclose this fact to the court. If an attorney does not make reasonably diligent inquiry and the statement turns out to be untrue, then the lawyer has violated Rule 3.3(a) (1), regardless of whether the attorney knew so at the time. Comment  to this Rule cautions: “An assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.” Id.
A knowingly false statement to a tribunal is a serious violation of the RPC. Rule 3.3(a) (4). In the context of discovery, parties and counsel must be able to rely upon representations made to each other with respect to discovery. Truthfulness in discovery practices is essential to preserving the fairness of the adversarial system. Equally as important, a court must be able to rely upon representations made to it about discovery, whether in the criminal or civil context. If courts cannot rely upon representations made to them by counsel regarding the sufficiency of the discovery proffered, our judicial system would come to a grinding halt. It is especially important that courts be able to rely upon the representations of criminal prosecutors about discovery and all other issues.
Additionally, there is no faster way for an attorney to get neck deep in quicksand than to make a false statement in a disciplinary investigation by the State Bar. Regardless of the underlying allegations, an attorney can count on more severe discipline if he is not Duke Lacrosse Case from page 13 completely forthcoming in the disciplinary process. Nifong’s multiple written responses to the State Bar inquiries conflicted with accounts of multiple witnesses, his own statements to the court in the Duke lacrosse case, and even conflicted with his other written responses to the State Bar and his deposition testimony in the disciplinary matter. His multiple misrepresentations and intentional obfuscation likely contributed to the harsh penalty handed down by the DHC.
Fortunately, the discovery and revelation of the truth concerning the undisclosed and exculpatory DNA evidence ultimately set the criminal defendants free and resulted in the highly unusual declaration of their innocence by the North Carolina attorney general. At the same time, Nifong’s repeated lies and misrepresentations led to his unprecedented disbarment as a sitting district attorney. This misconduct was part of his systematic abuse of prosecutorial power and discretion that was the final nail in his disciplinary coffin.