## Facts

- Michael B. Nifong, the elected district attorney in Durham County, personally managed the prosecution of three Duke University lacrosse players accused in 2006 of sexual assault.
- During a contested campaign to retain office, Nifong made multiple public statements about the case to media outlets, including statements expressing certainty about the occurrence of rape and comments criticizing the accused for not speaking with investigators on advice of counsel.
- DNA testing conducted by a private laboratory identified DNA from multiple unidentified males on evidentiary items; none matched the charged players.
- The Disciplinary Hearing Commission found that Nifong and the DNA analyst agreed to a written report that omitted key exculpatory findings, including the absence of matches to the defendants and the presence of DNA from unidentified males.
- Nifong did not timely provide defense counsel with exculpatory DNA information and repeatedly represented to defense counsel and the court that he had provided all discovery and that all test results were contained in the formal DNA report.
- After a court order, Nifong produced approximately 1,800 pages of raw DNA data; defense counsel devoted substantial time to analysis and identified undisclosed exculpatory results.
- The criminal prosecutions later collapsed; the charges were dismissed and the accused were publicly declared innocent.
- The North Carolina State Bar filed a disciplinary complaint alleging rule violations based on (1) prejudicial public statements, (2) failure to disclose exculpatory evidence, and (3) misrepresentations to the court and counsel; the Commission issued an amended disciplinary order culminating in disbarment.

## Issues

1. Whether Nifong’s extrajudicial statements created a substantial likelihood of materially prejudicing proceedings and heightening public condemnation of the accused.
2. Whether Nifong violated prosecutorial disclosure duties by intentionally failing to timely disclose exculpatory DNA evidence to the defense.
3. Whether Nifong made false statements of material fact to the tribunal and opposing counsel regarding discovery compliance and DNA evidence.
4. Whether this conduct constituted dishonesty and conduct prejudicial to the administration of justice warranting disbarment.

## Decision

- The Disciplinary Hearing Commission found, by clear, cogent, and convincing evidence, that Nifong violated the North Carolina Rules of Professional Conduct.
- The Commission concluded Nifong made improper extrajudicial statements in violation of Rules 3.6(a) and 3.8(f).
- The Commission concluded Nifong failed to disclose exculpatory evidence in violation of Rule 3.8(d).
- The Commission concluded Nifong made false statements to the court and opposing counsel and engaged in dishonest conduct in violation of Rules 3.3(a), 4.1, and 8.4.
- The Commission concluded Nifong engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).
- The Commission ordered Nifong disbarred from the practice of law in North Carolina.

## Legal Principles

- Prosecutors must refrain from public statements that present a substantial likelihood of materially prejudicing an adjudicative proceeding and must avoid statements likely to heighten public condemnation of an accused. (Rules 3.6(a), 3.8(f))
- Prosecutors must timely disclose evidence that tends to negate guilt or mitigate the offense; intentional withholding of exculpatory information violates professional duties independent of criminal discovery rules. (Rule 3.8(d))
- Lawyers must not knowingly make false statements of material fact to a tribunal or opposing counsel, and may not misrepresent compliance with discovery obligations. (Rules 3.3(a), 4.1)
- Conduct involving dishonesty, fraud, deceit, or misrepresentation, and conduct prejudicial to the administration of justice, warrants severe professional discipline when it compromises fairness and the court’s supervisory role. (Rule 8.4(c), (d))
- When a prosecutor’s misconduct combines prejudicial publicity, concealment of exculpatory evidence, and false statements to the court, disbarment may be necessary to protect the integrity of the justice system.

## Conclusion

The Disciplinary Hearing Commission determined that Nifong’s public commentary, intentional suppression of exculpatory DNA information, and material misrepresentations to the court and defense constituted multiple serious rule violations and ordered disbarment as the appropriate sanction.


North Carolina State Bar v. Nifong (N.C. State Bar Disciplinary Hearing Comm’n 2007)