Beyond Nifong: The Government Lawyer’s Ethical Obligation in a Civil Action

Abstract

The facts that led to the downfall of Durham North Carolina’s district attorney, Mike Nifong, are well documented. In essence, Nifong continued to prosecute three Duke University lacrosse players for an alleged rape, even after he became aware of evidence that showed that DNA tests exonerated each defendant. The public outcry was unprecedented when it learned of his persistence in prosecuting these students. Moreover, in an astounding display of temerity, the attorney general for the State of North Carolina took over the case from Nifong and immediately called a press conference to drop all charges against the Duke lacrosse players. Eventually, the outrage over Nifong’s actions led to his rather swift suspension and the eventual revocation of Nifong’s license to practice law in North Carolina.

The indignation over Nifong’s conduct was well justified. Not only did he violate numerous ethical standards of the North Carolina state bar, he violated two of the bedrock ethical principles of a government lawyer, early termination of meritless proceedings and full disclosure.

But, beyond Nifong and the higher ethical duty imposed on criminal government lawyers, this article examines whether there exists a comparable higher ethical duty upon civil government lawyers to cease litigation and provide full disclosure.

This article concludes that a government attorney in a civil proceeding has the same ethical obligation to fully disclose and cease meritless litigation as the government attorney in a criminal proceeding.

Keywords: Nifong, Ethics, government attorney, government lawyer, model code, model rules, E.C. 7-14, ethical considerations, aspirational rules, minimum conduct, professional responsibility