By Douglas J. Brocker

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 Disciplinary Hearing Commission (DHC), the trial arm of the State Bar, reprimanded these two lawyers for their conduct. The DHC’s decision in Hoke and Graves created a firestorm of criticism.

As a result of this decision and criticism, a special committee was formed and found that the State Bar acted appropriately but recommended several changes. First, the committee recommended modification of the existing ethics rules concerning discovery. Second, it recommended that the State Bar consider retaining outside counsel in certain high-profile cases.

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 Durham District Attorney, Mike Nifong, whose misconduct occurred both before and after the adoption of these new rules. I was privileged to serve as special outside counsel to prosecute the Nifong case along with the State Bar’s counsel, Katherine Jean.

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.

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 [2], Rule 3.8

Discovery Violations in Nifong Case

The disciplinary proceeding against Mr. Nifong involved a particularly egregious violation of the discovery rules. The DHC found that Mr. 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 had 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 Mr. 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 Mr. Nifong about the multiple unidentified male DNA during three in-person meetings. Mr. 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 Mr. 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 Mr. Nifong was eventually ordered by the presiding judge to provide them over six months later. The discovery and disclosure of this information ultimately lead to the disciplinary charges against Mr. 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. Mr. 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 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 Rules of Professional Conduct. 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 Rules of Professional Conduct. 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 Rules of Professional Conduct.

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 rules clarify 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 [5], 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.

Lessons Learned

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.