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On March 14, 2006, a young black woman reported that she had been raped by three white members of the Duke University lacrosse team during a team party. The report sparked a television, print and Internet news media frenzy. On March 24, 2006, Michael Nifong, district attorney for the 14th Prosecutorial District of Durham County, N.C., assumed primary responsibility for prosecuting any criminal charges resulting from the investigation of the Duke lacrosse case. On April 17, Nifong sought and obtained indictments against two members of the Duke lacrosse team for first-degree rape, first-degree sex offense and kidnapping. On May 15, Nifong indicted a third Duke lacrosse player for the same criminal offenses. Of all the fascinating plot twists that became a daily staple of the highly publicized Duke lacrosse players’ prosecution, certainly the most bizarre is the resulting disciplinary proceeding now pending against Nifong. Nifong stands accused by the North Carolina state bar of violating the U.S. Constitution, North Carolina statutes and the North Carolina Rules of Professional Conduct in connection with his handling of the case. The first disciplinary complaint included charges related to Nifong’s alleged failure to produce exculpatory evidence to the defendants. The North Carolina state bar then amended its complaint to include making misrepresentations to the North Carolina state bar grievance committee during its investigation. The focus of this article, however, is on the North Carolina state bar’s allegation that Nifong made improper extrajudicial comments to the media during his investigation of the alleged rape. Specifically, the North Carolina state bar contends in its amended disciplinary complaint that Nifong’s statements to the media, as well as a dozen or so additional public statements attributed to Nifong, were made in violation of rules 3.6(a) and 3.8(f) of the North Carolina Rules of Professional Conduct (Pennsylvania rules 3.6(a) and 3.8(e) are identical to North Carolina rules 3.6(a) and 3.8(f) and both closely follow the Model Rules). The charges stem from statements Nifong made in late March and early April 2006 to various members of the television and print news media. According to the North Carolina state bar, between March 27 and April 3, 2006, Nifong spoke with reporters from CNN, MSNBC, CBS News, ABC News, USA Today, The New York Times, and ESPN News. Nifong has since admitted that all of the following quotes are consistent with statements he gave to members of the news media concerning the Duke case: “There are three people who went into the bathroom with the young lady, and whether the other people there knew what was going on at the time, they do now and have not come forward. I’m disappointed that no one has been enough of a man to come forward. And if they would have spoken up at the time, this may never have happened.” “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?” “And one would wonder why one needs an attorney if one was not charged and had not done anything wrong.” “There’s no doubt a sexual assault took place.” “I would like to think that somebody [not involved in the attack] has the human decency to call up and say, ‘what am I doing covering up for a bunch of hooligans?’” “In this case, where you have the act of rape – essentially a gang rape – is bad enough in and of itself, but when it’s made with racial epithets against the victim, I mean, its just absolutely unconscionable.” “The thing that most of us found so abhorrent, and the reason I decided to take it over myself, was the combination gang-like rape activity accompanied by the racial slurs and general racial hostility.” “I’m not going to let Durham’s view in the minds of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.” Rule 3.6(a) prohibits a lawyer who has participated in the investigation or litigation of a matter from making extrajudicial statements 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 hearing in the matter. The explanatory comments to Rule 3.6(a) clarify that criminal jury trials are, by nature of the stakes involved, “most sensitive to extrajudicial speech.” The comments further provide that there are “certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, including commentary on: the character or credibility of a suspect in a criminal investigation or witness; the failure or refusal of a suspect to make a statement; the lawyer’s opinion as to the guilt or innocence of a suspect in a criminal case; or information that the lawyer knows or reasonably should know is likely to be inadmissible and which would create a substantial risk of prejudicing an impartial trial in the matter.” Rule 3.8(f) applies particularly to extrajudicial comments made by prosecutors. The Rule provides in pertinent part that, except for statements necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, a criminal prosecutor shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. The explanatory comments to Rule 3.8(f) provide that “[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.” Referring back to Rule 3.6(a), the comments further provide that “a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused.” In his answer to the North Carolina state bar’s amended disciplinary complaint, Nifong stated that he “did not understand the extent of the national media interest in this particular investigation and as such, he did not comprehend the effect said statements may have on any matters related to the case.” Nifong also stressed that “[a]fter April 3, 2006, [he] attempted to limit comments about said case to arguments he made in open court, press releases issued from his office and responded to questions directed to him at public forums which he attended in Durham County.” Finally, Nifong denied that any of his extrajudicial comments to the media were intended to materially prejudice an adjudicative proceeding or heighten the public condemnation of an accused. Rule 3.6(a), however, does not require proof of subjective intent in order to establish a violation. Instead, the rule expressly applies to extrajudicial comments that a lawyer either knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Rule 3.8(a) is silent concerning the intent required to establish a violation of the rule. The accompanying explanatory comments, however, describe Rule 3.8(f) as a “supplement” to Rule 3.6. Accordingly, it appears that Rule 3.8(f) incorporates the same subjective / objective reasonableness standard as Rule 3.6(a). If an objective intent standard is applied, in our opinion Nifong likely will be found to have violated the rules. The underlying spirit of both rules, but especially Rule 3.8, was expressed by U.S. Supreme Court Justice Oliver W. Holmes a century ago in Patterson v. State of Colorado ex rel. Attorney General: “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.” In federal criminal cases, this ideal has become more difficult to attain with the increase in the government’s use of “speaking indictments,” i.e., indictments that provide detail well beyond what is required by Federal Rules of Criminal Procedure, Rule 7. An evidentiary hearing in the disciplinary action brought against Nifong is scheduled to take place in June before the North Carolina Disciplinary Hearing Commission. Whatever the outcome, the Duke lacrosse case and the resulting disciplinary charges against Nifong serve as a cautionary tale to any lawyer considering talking to the press during an investigation, lawsuit or prosecution in which he is involved. We must carefully consider the potential impact that our comments will have before responding to a media request for information. As the Supreme Court has said in Bridges v. State of California, “(l)egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Lawyers on both sides of the aisle need to keep this principle firmly in mind, especially when they litigate high-profile cases. ELLEN C. BROTMAN recently joinedMontgomery McCracken Walker & Rhoads as ofcounsel to its white collar crime and governmentinvestigations group and chairwoman of its professional responsibility group after several years of being a principal in the firm of Carroll & Brotman. Brotman is also a former assistant federal defender with the Philadelphia Community Defenders Organization. MICHAEL B. HAYES is a senior litigation associate with the firm and is a member of the firm’s professional responsibility practice group. Prior to joining the firm, Hayes served as a law clerk toJustice Russell Nigro of the Pennsylvania Supreme Court.

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