By Douglas J. Brocker
It’s a simple enough principle: “Always tell the truth.” As lawyers, honesty and integrity are central to our ethical duties. We are obligated to tell the truth — to the courts, to each other, to our clients, to the State Bar, and in every aspect of our practice. These obligations are reflected in numerous specific Rules of Professional Conduct:
- Rule 3.3(a)(1) – requires candor toward all tribunals,
- Rule 4.1 – mandates truthfulness in statements to others,
- Rule 8.1 – governs statements in disciplinary matters and Bar admissions, and
- Rule 8.4(c) – prohibits any dishonesty, fraud, deceit, or misrepresentation.
In the Nifong disciplinary proceeding, the Disciplinary Hearing Commission (DHC) concluded that the former DA engaged in repeated misconduct that violated each one of the above rules. State Bar v. Nifong, 06 DHC 35. For example, Mr. Nifong provided the defense counsel with a written DNA report that omitted numerous results finding multiple unidentified male DNA on the alleged victim and her intimate clothing. Contemporaneously, he served and filed a written response representing to the court and defense counsel that he was not aware of any other exculpatory information. Mr. Nifong previously had multiple lengthy meetings with his DNA expert in which this exculpatory information was discussed in detail.
In response to repeated requests by defense counsel, Mr. Nifong consistently represented that all the DNA results were in the written report and that he had no discussions with his experts regarding these results. At a subsequent hearing, Mr. Nifong represented, in direct response to an inquiry from the presiding judge, that his expert did not discuss any results other than what was contained in the written report. The clear, cogent and convincing evidence at the disciplinary trial demonstrated these repeated representations to be false.
After defense counsel independently discovered the existence of this evidence, Mr. Nifong falsely represented or implied to the court and defense counsel that he was not aware of the existence of this unidentified male DNA or its exclusion from the written report. He later repeated that misrepresentation, and others, to the State Bar during its investigation of his conduct. Despite evidence to the contrary, Mr. Nifong persisted with these misrepresentations through his sworn testimony at the trial before the DHC. Mr. Nifong wove this intricate web of deception in an attempt to conceal the existence of clearly exculpatory information that he had withheld from defense counsel.
Representations Based on Personal Knowledge
Mr. Nifong’s attempted defense against these allegations raises an interesting distinction in the rules concerning misrepresentations. Mr. Nifong contended that while his representations to the court turned out to be untrue, he did not make an intentional misrepresentation. He claimed that he never read the written report from his outside DNA expert. This report concerned critical evidence in the most important case of his career — one that garnered unprecedented national media attention. Mr. Nifong further contended that despite repeated and continuing requests from defense counsel for all the DNA results and tests performed and inquiries from the court, he never went back and read the DNA report before making his various misrepresentations to the court about it.
Even if Mr. Nifong’s story had been credible, his misrepresentations would still have constituted a violation of the rules. Under the Rules of Professional Conduct, there is a difference between a lawyer’s duty to the tribunal when he makes representations based upon his own personal knowledge and when he presents assertions made by the client or other third parties. Ordinarily, when a lawyer files pleadings containing allegations made by the client or makes statements to the court based upon a client’s representations, the lawyer is not deemed to have personal knowledge of the veracity of the information presented. A lawyer need not fully substantiate the facts presented before filing suit or making such statements. Comment , Rule 3.3.
In contrast, when an attorney makes a statement to a court based upon his own personal knowledge, he must make reasonably diligent inquiry into the accuracy of the statement before making it, if there is any doubt as to the statement’s veracity. If reasonably diligent inquiry has not been made, then the attorney has the obligation to disclose this fact to the court. If an attorney does not make reasonably diligent inquiry and the statement turns out to be untrue, then the lawyer has violated Rule 3.3(a)(1), regardless of whether the attorney knew so at the time. Comment  to this Rule cautions: “an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.” Id.
A knowingly false statement to a tribunal is a serious violation of the Rules of Professional Conduct. Rule 3.3(a)(4). In the context of discovery, parties and counsel must be able to rely upon representations made to each other. Truthfulness in discovery practices is essential to preserving the fairness of the adversarial system. Equally as important, a court must be able to rely upon representations made to it about discovery and all other issues, whether in the criminal or civil context. The discovery process is fundamental to the truth-seeking function of the judicial system. If courts cannot rely upon representations made to them by counsel regarding the sufficiency of the discovery proffered, our judicial system would come to a grinding halt. It is especially important that courts be able to rely upon the representations of criminal prosecutors about discovery and all other issues.
Additionally, there is no faster way for an attorney to get neck deep in quicksand than to make a false statement in a disciplinary investigation by the State Bar. Regardless of the underlying allegations, an attorney can count on more severe discipline if he is not completely forthcoming in the disciplinary process. Mr. Nifong’s multiple written responses to the State Bar inquiries conflicted with accounts of multiple witnesses, his own statements to the court in the Duke Lacrosse Case, and even conflicted with his other written responses to the State Bar and his deposition testimony in the disciplinary matter. His multiple misrepresentations and intentional obfuscation likely contributed to the harsh penalty handed down by the DHC.
Fortunately, the discovery and revelation of the truth concerning the undisclosed and exculpatory DNA evidence ultimately set the criminal defendants free and resulted in the highly unusual declaration of their innocence by the North Carolina Attorney General. At the same time, Mr. Nifong’s repeated lies and misrepresentations led to his unprecedented disbarment as a sitting District Attorney. This misconduct, which was just one aspect of Mr. Nifong’s repeated abuse of his prosecutorial power and discretion, was the final nail in his disciplinary coffin.