Former Durham district attorney Mike Nifong filed for bankruptcy Tuesday in response to two pending lawsuits, which the bankruptcy claim says could amount to more than $180 million in debt.
The filing was Nifong's response to the latest of the suits, filed by senior Ryan McFadyen, Breck Archer and Matt Wilson, Trinity '06, three unindicted members of Duke's 2005-2006 men's lacrosse team.
But bankruptcy lawyers said the move was likely motivated by strategic designs as well as necessity. The claim will slow the course of the pending lawsuits and could even permanently free Nifong of legal responsibility for the debts if players fail to prove that the prosecutor's actions were malicious.
"It'll give him some breathing room for now," said Robert Taylor, a California bankruptcy attorney, citing U.S. bankruptcy laws. "For him to be responsible, his actions have to be 'willful and malicious.' Otherwise the lawsuit is wiped out."
In the claim, Nifong estimated his current assets at approximately $250,000 and claimed liabilities of $30 million for each of the six former players who have already filed suit against him.
Creditors, who include any parties seeking damages from a debtor, have 90 to 120 days from the filing to prove to bankruptcy courts that Nifong fits the description of the exception, said Evan Smith, another California attorney.
The claim also seeks to protect Nifong from future litigation. The former district attorney's list of 103 possible creditors spans 21 pages and appears to include all parties involved in the case, from 43 members of the 2005-2006 men's lacrosse team to a laundry list of University administrators, city officials and police investigators.
By listing each as a creditor, Nifong is giving potential suers notice to file their complaints now or forever hold their peace, Smith said.
"He's not sure he owes them anything, but he's trying to flush them out," Smith said. "Basically he's trying to protect himself.... It's a permanent injunction from forcibly collecting debt from him."
Even if the players choose to file complaints against Nifong by the probable April deadline, they are likely to have a harder time convincing a judge in a bankruptcy court that the former prosecutor intended the negative effects of his actions, Smith said.
"The standard that players are going to have to meet is higher in bankruptcy court than otherwise," Cary bankruptcy lawyer Travis Sasser said.
In addition, the players are less likely to generate sympathy in a bankruptcy court, Smith said.
"There is usually a presumption in favor of the debtor," he said, adding that having a judge presiding over the hearing, rather than a jury, will be an advantage to Nifong, who could otherwise be hurt by the players' appeals of emotional damage.
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