LawyersUSA

CLE Credit – This "Compass" article includes an online assessment that can be found at www.lawyersusa.fastcle.com. You may be approved for 1.0 hours of Ethics credit in your state. To complete the assessment please visit www.lawyersusa.fastcle.com. This is a free service for all Lawyers USA subscribers.)

When Durham County North Carolina District Attorney Mike Nifong was disbarred in June 2007, much of the world was watching.

Not as many people remember that Nifong was held in criminal contempt of court for his misconduct in the infamous Duke University lacrosse case, and that he served a one-day jail sentence in September of the same year.

The chief victims of Nifong's abuse of power – the lacrosse players wrongfully charged with rape – have filed suit against him, and he has responded by filing for bankruptcy.

Most lawyers and many lay people are probably aware that what sealed Nifong's fate was not his series of prejudicial misstatements to the press or the shoddy investigation he conducted before leveling the charges. That is serious misconduct, but it would typically merit only a public reprimand or a short suspension.

When Nifong withheld evidence from the defense team and then lied about it in court, however, he paid a steeper price and learned first-hand that in our system, the cover up is almost always worse than the underlying offense. (Consider the cases of Richard Nixon, Bill Clinton, Martha Stewart, and now Barry Bonds and Roger Clemens.)

The venal self-interestedness of Nifong's abuse of power made it all the more ugly.

He deliberately pressed forward with a case he knew was bogus against white, well-to-do Duke athletes, and lied about the DNA evidence exculpating them, for the specific purpose of currying favor with black voters in an upcoming primary election.

Varied reactions

Few now doubt the correctness of the North Carolina State Bar Disciplinary Committee's findings against Nifong, and its judgment that disbarment was the only way to adequately demonstrate the seriousness of the situation.

In keeping with the chief aim of lawyer discipline, this was protection of the public and the system, not punishment.

However, personal reactions to the severity of the action (and the swiftness of Nifong's fall) have varied.

Many felt a sense of relief: the bad guy got caught, the system responded and justice was delayed but not denied. At least as important, the goal of removing abusive officials from high places had been met.

Others tempered such feelings with compassion for the flawed individual behind the headlines. Will his family have to go on welfare? How will his kids survive the taunts in school and how will his wife live with the humiliation?

Of course there were outliers, such as members of the largely white, well-to-do faculty at Duke, who continued to pillory the lacrosse players for no apparent reason other than because they were not only white and well-to-do themselves, but also jocks.

The ethics perspective

The reaction of the legal ethics community – lawyers, judges, academics, columnists and others who deal with the regulation of the legal profession – was especially interesting.

Many of us, myself included, thought it was an encouraging step forward for legal ethics.

The Nifong disbarment shows that you can fight City Hall, and that sometimes you can win. The result defeats the view that people in power always get away scot free or with only a slap on the wrist. Energetic and courageous lawyers and citizens could take heart.

In the future, serious misconduct should be pursued under the slogan "Remember Nifong!"

Some of my colleagues, however, complained that the case was an aberration. The Duke players prevailed only because they were able to afford talented lawyers who had the resources to dig for the truth, they said.

If the situation were reversed – as it frequently is – and there were black defendants accused of raping a white stripper, these colleagues argued that the defendants would have been forced to accept a plea bargain and would now be about a year into their prison sentences.

In this view, the Nifong disbarment was a one-performance-only show, demonstrating that the system will function properly only on behalf of its chosen favorites.

However, this strikes me as a self-fulfilling prophecy of perpetual stagnation; it throws away a single (and signal) victory over injustice because more injustice remains.

Fighting back

It is important to remember that there are always two ways to cure an imbalance in society – we can shrug our shoulders and watch as the white, well-to-do jocks get railroaded by a corrupt prosecutor, or we can do our best to help those who don't have the resources to fight back.

I prefer leveling up, not down.

Although proposals have been in the pipeline for some time, it cannot be totally coincidental that the American Bar Association amended the Model Rules of Professional Conduct just last month with respect to the ethical obligations of prosecutors.

Prosecutors are now under an enforceable duty to take affirmative action to free a defendant, even after conviction, if they come to know of credible and material evidence of innocence.

This provides a serious incentive to would-be Mike Nifongs to step back from the precipice. In most situations, even a prosecutor who knowingly uses fabricated evidence to obtain a conviction will be shielded from civil liability because of prosecutorial immunity. But with this new rule and the Nifong precedent in play, they could put their careers and livelihoods at risk.

It is a great day for legal ethics.

William Hodes is a solo practitioner who specializes in legal ethics and the law of lawyering. Based in Indianapolis, Ind., he is Professor Emeritus of Law at Indiana University, where he taught for 20 years. His website is www.hodeslaw.com.