LieStoppers Ratchets Up "Disbar Nifong"

I was pleased to swing by LieStoppers the other day and see their new sidebar heading entitled "Legal Ethics - Research and Analysis," under which are twenty-eight invaluable links. The second through twenty-eighth of the itemized materials include, inter alia, scholarly treatises, legal memoranda, Law Review articles, regulatory language and interpretation, procedural outlines, controlling case law, professional standards, and peer-generated and -reviewed guidelines, all of which illuminate the bright line distinction between ethical prosecutorial conduct and being Nifonged.

On August 9th, Raliegh News & Observer reporter, Joe Neff, answered some readers' questions about the Duke Ra Durham Corruption Scandal (hereafter, DCS), including this exchange, with Michelle Miller, of nearby Cary:

Q: Can (District Attorney Mike) Nifong be removed from the case?

A:District attorneys are independent officials whose jobs are created by the N.C. Constitution. District attorneys report to the voters of their district - in this case, Mike Nifong's boss is the citizenry of Durham County. He does not report to the governor or the state attorney general. A judge can order a district attorney off a case if there is an actual conflict of interest. This is a very high standard. For example, prosecutors will recuse themselves if a staff member had represented a defendant in private practice, or if a prosecutor had business dealings with the defendant.

While Mr. Neff has proven himself the only N&O scribe to have weighed-in on the DCS with any, well, weight, his answer to Ms. Miller is incomplete and, thus, unintentionally misleading. Forget, for a moment, that Nifong was never elected by the citizenry of Durham County but, rather, appointed to the position by the governor to whom he "does not report."

Mr. Neff's response is deficient not for what it says, which is correct, but for what it doesn't say. It fails to raise a basic condition-precedent to the need for removal of an unfit attorney by way of public vote.

The State Bar of North Carolina is established under N.C. General Statutes, Article 4, Section 84-1. It is governed by a fifty-five member Council vested with the authority to regulate the professional conduct of, and disbar, licensed lawyers.

In order to practice law legally in North Carolina, Nifong must, of course, be an attorney duly admitted and licensed to do so by the North Carolina State Bar. As the Bar giveth, so, too, may the Bar taketh away. Like any other licensed North Carolina attorney, Nifong is subject to the disciplinary authority of the Council, through its Disciplinary Hearing Commission.

Pursuant to N.C.G.S. Article 4, Section 84-28 (b), "The following acts or omissions by a member of the North Carolina State Bar...individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether the act or omission occurred in the course of an attorney‑client relationship or otherwise:

(1) Conviction of, or a tender and acceptance of a plea of guilty or no contest to, a criminal offense showing professional unfitness;

(2) The violation of the Rules of Professional Conduct adopted and promulgated by the Council in effect at the time of the act;

(3) Knowing misrepresentation of any facts or circumstances surrounding any complaint, allegation or charge of misconduct*; failure to answer any formal inquiry or complaint issued by or in the name of the North Carolina State Bar in any disciplinary matter; or contempt of the Council or any committee of the North Carolina State Bar."

Section 84-28(c) itemizes the degrees of discipline to which the unfit attorney may be subject:

"(c) Misconduct by any attorney shall be grounds for:

(1) Disbarment;

(2) Suspension for a period up to but not exceeding five years, any portion of which may be stayed upon reasonable conditions to which the offending attorney consents;

(3) Censure – A censure is a written form of discipline more serious than a reprimand issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or potential significant harm to a client, the administration of justice, the profession or members of the public*, but the protection of the public does not require suspension of the attorney's license;

(4) Reprimand – A reprimand is a written form of discipline more serious than an admonition issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct, but the protection of the public does not require a censure. A reprimand is generally reserved for cases in which the attorney's conduct has caused harm or potential harm to a client, the administration of justice, the profession, or members of the public; or

(5) Admonition – An admonition is a written form of discipline imposed in cases in which an attorney has committed a minor violation of the Rules of Professional Conduct."

In my view, despite the universally acknowledged egregiousness of Nifong's unethical conduct in this matter, he will not be disbarred unless it be proven that, in blind pursuit of elected office, he criminally coerced, directed, controlled or solicited the generation of the Himan's perjurious probable cause Affidavits of March 23d (in support of the Identification Order that compelled 46 lacrosse team members to submit to DNA testing) or March 27th (in support of an Order seeking the dorm room search warrant), or the renegade photo line-ups. Considering the North Carolina Bar's abysmal record on meting out attorney discipline, perhaps censure or reprimand is the best one might hope for in this nationally sensational case.

Regardless of the action, if any, ultimately taken by the Bar against Nifong, personally, however, N.C.G.S Section 84-28(f) provides that:

"(f) Upon application by the North Carolina State Bar, misconduct by an attorney admitted to practice in this State may be restrained or enjoined where the necessity for prompt action exists regardless of whether a disciplinary proceeding in the matter of the conduct is pending.* The application shall be filed in the Superior Court of Wake County and shall be governed by the procedure set forth in G.S. 1A‑1, Rule 65."

Which is why it is of paramount urgency that every duly licensed North Carolina attorney who cares about the due process protections of the Constitution, the sanctity of the rule of law, and elevating the reputation of the State Bar to something loftier than just another good ol' boy network, immediately fill and submit a copy of the N.C. State Bar Grievance Complaint Form found as the first link to LieStoppers "Legal Ethics - Research and Analysis" sidebar.
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*Emphasis mine.