The Prosecutor and the Press: Lessons (Not) Learned from the Mike Nifong Debacle

Abstract

Using the Mike Nifong disciplinary case in North Carolina as a focal point, the author examines the disciplinary rules pertaining to public speech by attorneys during the pendency of an adjudicatory proceeding. The author argues that in light of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, certain provisions of Model Rules of Professional Conduct, Rules 3.6 and 3.8, may violate the first amendment, at least as applied to an elected prosecutor speaking during a political campaign. While former District Attorney Nifong made several statements to the media during the so-called “Duke Lacrosse” investigation that were clearly overzealous and impermissible even under the narrowest reading of the pertinent disciplinary rules, other public statements that Nifong made and was later disciplined for may have been protected by the first amendment, had the respondent raised a constitutional challenge in his North Carolina Disciplinary Commission proceeding. The author uses the Nifong disbarment case as a lens through which to examine current ethical restrictions on attorney speech, and to highlight provisions that might be vulnerable to a constitutional challenge.