Monday, October 02, 2006

Nifong's Professional Creed

In 1989, citing declining standards of professionalism among the state’s attorneys, the North Carolina Bar Association published a document called “The Lawyer’s Creed.” Unlike the bar’s Rules of Professional Conduct, the tenets of the professional creed are voluntary.

It should come as little surprise, then, that Mike Nifong considers himself above these guidelines; after all, he has refused to adhere to the bar’s ethics rules, which are mandatory. That action could mean that this case will be the last time he practices law: as Charlotte defense attorney Jim Cooney observed in yesterday’s N&O, Nifong has “staked his reputation and probably to a larger extent his career on this case.”

The gap between Nifong’s behavior and that envisioned by the creed, however, is so wide as to merit comment.


Lawyer’s Creed: “First and foremost, I will strive to do honor to the search for justice.”

Nifong’s Creed: In one of the most penetrating analyses of the case, USC law professor Susan Estrich wrote, “There are reasons you follow procedures. In general, they are there to spare outrage.”

Nifong, by contrast, appears to believe that standard procedures obstruct the “search for justice”—as seen in his ordering the police to violate their own procedures to obtain indictments; or his violating the state bar’s ethics code to avoid considering exculpatory evidence; or, as the N&O revealed yesterday, his proceeding with indictments despite never having heard from the accuser her (then-existing) story.


Lawyer’s Creed: “A lawyer should return other counsel’s telephone calls and respond to written communication in a timely manner.”

Nifong’s Creed: In the September hearing, defense attorneys revealed that Nifong (incredibly) has refused even to return their phone calls; and confirmed that he spurned their repeated requests to meet personally.

Meanwhile, Reade Seligmann’s attorney, Kirk Osborn, has filed no fewer than 21 motions, dealing with critical issues such as Nifong’s apparent refusal to consider alibi evidence and the D.A.’s unwillingness to spell out a precise theory of the crime. Osborn filed his first motion on April 21. Nifong has yet to respond in writing to even one of these motions.


Lawyer’s Creed: “To opposing parties and their counsel, I offer fairness, integrity, courtesy, and civility.”

Nifong’s Creed: The district attorney seems to believe that courtesy and civility are beneath him. In a July hearing, Nifong made the extraordinary assertion that “it looked sometimes over the course of the last few months that some of these attorneys were almost disappointed that their clients didn't get indicted so they could be a part of this spectacle here in Durham.” Two months earlier, when Nifong encountered a lawyer for Dave Evans, the D.A. publicly “made liberal use of profanity, including the word ‘mother[expletive].’”


Lawyer’s Creed: Attorneys should make any “dispute a dignified one.”

Nifong’s Creed: The adjectives that might describe Nifong’s behavior do not include “dignified.” This is a man who demonstrated the non-existent “chokehold” on national television; ridiculed the “feeling that Duke students’ daddies could buy them expensive lawyers and that they knew the right people”; and said he was “very pleased” to have his citizens’ committee run by a homophobe and a person who has openly appealed to class and race prejudice.


Lawyer’s Creed: “A lawyer should maintain a cordial and respectful relationship with other lawyers and should always be courteous and candid with opposing counsel, reserving the right to disagree without being disagreeable.”

Nifong’s Creed: Yesterday’s N&O described a pattern of emotionally unstable behavior that dates back at least to Nifong’s publicly funded “semi-retirement” in traffic court. In the words of one Durham attorney, “Working with Mike, you never knew from one day or the other who you’d be dealing with. He would curse you, scream at you, call you names over nothing.” Another defense lawyer stated, “I have seen him lose his temper and berate attorneys in an unprofessional manner.”


Lawyer’s Creed: “A lawyer should refrain from curt or personally critical remarks concerning opposing counsel.”

Nifong’s Creed: The district attorney seems to go out of his way to belittle his opponents, perhaps reflecting his own personal and professional insecurities. For instance, speaking of Kirk Osborn, he remarked, “If I were him, I wouldn’t want to be trying the case against me either . . . The best comment I ever heard about Kirk was he was the best-dressed public defender in North Carolina.” On another occasion, he asserted that he hadn’t read an Osborn motion (which he deemed “fiction”)—even though this motion introduced Seligmann’s alibi.


Lawyer’s Creed: North Carolina attorneys should conduct themselves “at all times in a manner that will reflect honor upon the profession.”

Nifong’s Creed: We are only beginning to see the dishonor Nifong’s behavior has wreaked upon the profession. North Carolina has 39 district attorneys. To my knowledge, only one of the other 38 has publicly (if anonymously, to Sports Illustrated) criticized Nifong. As a result, his behavior has tarred, by association, 37 of the Tarheel State’s other 38 district attorneys. On the national level, former Denver D.A. Norm Early, speaking on behalf of the National Conference of District Attorneys, has repeatedly defended Nifong’s conduct—thus suggesting that district attorneys everywhere routinely flout standard procedures.

The North Carolina Bar reissued its Professional Creed in 2003. Imagine if one of the bar’s members, Mike Easley, had taken the creed’s terms seriously when making appointments for district attorney vacancies.

Hat tip: K.H.


Anonymous said...

I just posted on the Friends site asking if Durham doesn't have policies for how employees are required to conduct themselves. If someone in my office spoke to anyone else with angry, vulgar language like Nifong uses, they would be sent to some sort of class, counseling, or possibly fired. I can't believe a government entity allows this type of behavior to go on without reprimand or worse. Those of us who pay the bills deserve more.

Anonymous said...

I noticed that yesterday's puff piece in the N and O carefully omitted any mention of the fact that the lawyer for Dave Evans, at whom Nifong famously spewed his filthy tirade, is a woman. Guess the N and O wanted to spare its Gentle Readers the visual image of Nifong screaming "Mother f***er" at a lady colleague.

Anonymous said...

In our city, charlotte, a county employee was fired for simply forwarding a baldy email. In the Republic of Durham, anything goes

Anonymous said...

I am outraged and disgusted by Nifong's behavior thus far. Is planting evidence the next logical step?

Anonymous said...

What would you consider Gottlieb's 33 typed from "memory" report?

Anonymous said...

Speaking of the 33 page Gottlieb report, does anyone actually think Gottlieb wrote it? I am reminded of Gottlieb's 3rd ID transcript. It was written in a mix of first & third person as a narrative also!

Anonymous said...

Do you think Gottlieb hired professional writer?
According to Gottlieb, the woman ambulated across the room.
Does Gottlieb even know words like that?

A Rape Victim said...

the reason Nifong has no time to answer motions, is because he is doing illegal background check on peolpe who send him e-mails.

I have written to the D.O.J to investigate Nifong. I also spoke with the Asst. Attorney General for NC and he refuses to get involved.

Madder than a hornet said...

When the joyous day arrives that 3 innocent young men are freed from false charges, will you all commit with me to make changes in our national and state laws so that men like Nifong are justly and swiftly disbarred? We will be wading knee deep in lawyers who protect their own but we can do it....with KC's help.

Anonymous said...

Not get involved!! We have seen this repeatedly by the No.Ca. ministries of justice (?) For the life of me I cannot figure out why.
What are they all afraid of is the real question?

LearnedHand said...

announcement for those not familiar with his work...

cash michaels is back with some very insightful commentary on this mess. don't know where he went, but it is excellent to see his musings on the hoax once again.

for you kc:

Anonymous said...

The problem is *NC* not just Durham. The governor and legislature are spineless or rather many of them are former we have endless 'corruption' scandals (a very comprehensive opthamology exam that Speaker Black mandated for elementary kids - they don't need it but it's great for his doctor friends). Then you have Speaker Black apparently giving the repub that switched sides (allowing him to be speaker when dems and repubs were tied) wads of cash at an IHOP. Then there are the overweight trucks that destory the roads and the deliberate scaling down of the trucking enforcement division, etc.

We aren't exactly a 'clean' state so I wouldn't expect the legislature to do much. The only reason these discovery laws were passed was because NC sentenced a guy to death while the prosecutor hid evidence that the man he allegdly killed was alive on the only days he could have killed him... takes a shocker and lots of prior overturned verdicts to get about anything out of this state. Easley is a former prosecutor and they seem not to want to criticize fellow prosecutors.

Whatever. Nifong is probably reading this as I'm sure he has lots of time now that he's off traffic court. See, the reason Nifong can't respond to motions made in April by the defence is that he is quite busy writing his investigators statements. Yah, just like some of you mentioned Gottlieb's 33 pages are...well...not something I think he wrote by himself.

I have one question though; he went to the U S.C. Reno or Las Vegas right? The one where people were wondering if that was a real school? Why would you send someone to Nevada when the main campus is in South Carolina (and less expensive for the department). It seems as if education at the DPD is mixed with entertainment/gambling.

KC Johnson said...

Thanks for the tip on the Cash Michaels column. I plan to write on the change of venue issue Friday--and I agree that his column is very fair and well argued.

Anonymous said...

I have been watching this fiasco from day one. I ha e always maintained that those boys were innocent. Unfortunately, this no longer matters in an America were right and wrong can be subverted to an interpretation related to one's political affiliation. These young men will be railroaded while the north Carolina press assists this type of behavior. This shoddy woman, with a questionable past, ---- she is a prostitute by the way, too bad that is not politically correct to say, and with obvious mental problems will claim something to save her unworthy skin. Nifong will be re-elected because there are no standards in that crime ridden city and life will go on. I would NEVER send my children to that hell-hole. My husband was stationed in Fayetteville and we know.

The woman is a liar. But she will be made into a Madonna (not the singer) by the end of N & O's resolve, and Nifong will become "atticus" --- i put a small "a" since he is a liar.

My straight "a" children will never darken the doors of that dreadful school with its lilly livered leadership for sure.


Anonymous said...

"In our city, charlotte, a county employee was fired for simply forwarding a baldy email. In the Republic of Durham, anything goes "
----Amen! True that! Them BALDY jokes is not nothing to be laughed at. You call someone a Kojacker and see what up? You ain't seen no civil unrest until you gets them baldys stirred up. They make Souff-Centra look like Disney-World. Word!