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Vol. 33, No. 3

Nifonged—Dealing with media emergencies

by Robert J. Derocher

In North Carolina, it was a case of an overzealous prosecutor who put the reputation of the legal profession under a haze of doubt while publicly pursuing an alleged rape by athletes at a prestigious college.

In Texas, it was a case of a rural county that saw the limits of its judicial system tested by wave after wave of teenage brides, sheltered women, and unknowing children at the center of a raid on a fundamentalist Mormon ranch.

In each case, there was a common thread: an intense media crush that thrust bar association leaders into an unusual—and sometimes uncomfortable and unknown—national and international public spotlight.

While most bars won’t face issues involving polygamy, racism, fundamentalist religion, and elitism, North Carolina and Texas bar leaders told their colleagues at the Annual Meeting of the National Association of Bar Executives, in New York, that there was plenty to learn from their experiences. Discipline, planning, and coordination are all key, they said, when faced with sudden media scrutiny of bar associations, lawyers, and the profession.

Silence may be golden

For many, the name of former North Carolina district attorney Mike Nifong will always be linked with the ill-advised rape prosecution of three Duke University lacrosse players in 2006. Nifong, the Durham district attorney at the time, pushed the prosecution in a very public way as media outlets worldwide latched onto a tale laced with elements of sex, racism, and privilege.

In a span of 15 months, Nifong went from an electioneering DA decrying the Duke lacrosse team as a “bunch of hooligans” to an attorney labeled as a “rogue” prosecutor who was disbarred for numerous ethical violations. The case became so well known that it introduced a new word to slang dictionaries as well as to legal circles: nifonged—to be deceived by hiding evidence.

And for much of that time, the North Carolina State Bar (NCSB) worked to deflect public criticism of the law while launching its own confidential investigation into Nifong’s conduct.

“It was an unfortunate event for everyone involved,” said Irvin “Hank” Hankins, now the bar’s immediate past president. “The credibility of the profession and the public’s perception of the profession were suddenly on the line.”

As the media frenzy swirled around them, state bar leaders hired a public relations consultant and developed a media strategy that focused on consistency and confidentiality. The decision was made to channel all official statements through the bar’s executive director, Tom Lunsford. And his main message was that the bar would mostly remain silent during the case.

Bar leadership remained mum on any investigation as the case unfolded, even in the face of mounting media pressure. Lunsford said producers from the CBS investigative news show 60 Minutes made several persuasive attempts to get him to comment on Nifong and his conduct. No one from the bar budged.

“It was very difficult for us to stand by and have nothing to say. We took quite a beating, and we didn’t quite know how to handle it,” Lunsford said. “It wasn’t until December (2006) until we could say, ‘We were in this ball-game all along.’ I wished we could have at least said earlier on that we were looking at the Nifong situation.”

Even after the state bar began to take action against Nifong, the bar’s comments remained focused on the disbarment process without directly commenting on Nifong or his actions. In June 2007, two months after the state attorney general exonerated the lacrosse players and excoriated Nifong for “overreaching,” a state bar panel disbarred the former DA.

The end result, said Hankins, was widespread praise in North Carolina for the way the bar handled the Nifong case. It illustrated the importance, he noted, of planning for media events, sticking with the bar’s usual processes, and “staying on message” in a unified manner.

“It’s important to maintain discipline in dealing with the media,” Lunsford added. “It worked in our favor.”

Get on the message and stay there

Before April 2008, Schleicher County, Texas (estimated population: 3,000), handled about 50 civil cases a year at its tiny courthouse in the county seat of Eldorado in rural west-central Texas. In the days after a raid on the Fundamentalist Latter Day Saints (FLDS) by Texas Department of Child Protective Services, more than 400 guardian ad litem cases were on the docket.

“There aren’t 400 attorneys within a hundred miles of Schleicher County,” said Harper Estes, president of the State Bar of Texas (SBOT). “We knew we needed to help. We began meeting with staff right away.”

So, as news crews began descending on the county and reported on charges of widespread bigamy and sex with underage girls, the state bar jumped into action. While the primary order of business was to find hundreds of bar members statewide willing to take on pro bono guardian ad litem cases, Estes said, the bar also needed to take on a two-pronged public role: educating the public and the media about the law, while demonstrating the compassionate volunteer spirit of the bar and its members.

“We knew we needed to get a message together and to stay on message,” said Estes, echoing his counterparts in North Carolina. “We wanted the public to make sure they knew that the (legal) system did work.”

It was also critical to quickly develop that message and to determine the best people to deliver it, said Kelley Jones King, SBOT communications division director. That meant a lot of late-night calls and e-mails in the early days of the crisis to develop and carry out the plan.

Like North Carolina, SBOT designated a small number of people to publicly represent the bar and its mission. But unlike the Nifong situation, a prime goal of the Texas bar was to provide information to reporters. “We helped get reporters to the right people,” King said.

Estes and other bar leaders made appearances on national media outlets such as Dr. Phil, Nancy Grace, Today, and Good Morning America. “It’s an odd thing to say you’re a lawyer from Midland, Texas, and you were just quoted in a newspaper in Moscow,” said Estes.

But King added that it was equally important to make sure that bar members didn’t say too much. While reporters wanted information on the guardian ad litem process and the efforts of the volunteer lawyers, she said, they also wanted access to the lawyers to get potentially graphic eyewitness accounts from their clients on what occurred at the FLDS ranch. That’s where bar staff worked to protect lawyer-client confidentiality, according to King.

“You spend a lot of time saying (to reporters), ‘You can ask me all you want, but I just can’t tell you,’ ” she said. “The staff and the lawyers understood that was the message.”

By many accounts, the bar’s public relations efforts were a success, King noted. A media analysis showed that the bar, its members, or both, were mentioned in 252 news stories in the weeks after the raid, reaching 72.5 million people worldwide. It would have cost the bar an estimated $3 million in advertising to have that kind of exposure, she said.

“It was nice for a change,” Estes added, “to talk about how attorneys also do good.”