The issue is whether he can prosecute the lacrosse case and also defend himself. I don't see a problem. I think a person could do both, at least in a theoretical sense . . .Battaglia could use a refresher course on the state bar's ethics code. Rule 3.8 is entitled "special responsibilities of a prosecutor," and discusses in some detail the more rigorous ethics requirements that apply to prosecutors. Rule 3.8(f) holds, "Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."
If you match things up, it seems the same complaint could be made against each defense lawyer. I think they should all be quiet. Either we're going to treat everyone equally or not. I personally take a dim view of what's being done to the prosecutor. The timing of it is suspect in my book.
Meanwhile, the bar complaint specifically cited Nifong not just for making comments, but for making comments characterized by "fraud." Battaglia supplies no example of such comments by defense attorneys.
Finally, in his criticism of defense attorneys, Battaglia seems unfamiliar with Rule 3.6(c), which states, "A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." Given that defense attorneys had to counter dozens of Nifong statements that even the Bar has deemed prejudicial, it would seem that 3.6(c) fully justifies their comments.
Maybe one outcome of this affair would be to require a refresher course in the ethics rules for all members of the Durham defense bar?