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.

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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.

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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.

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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].’”

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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.

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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.”

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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.

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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.