A few lines in a Friday New York Times report which detailed how video of the killing of Ahmaud Arbery became public have raised interesting professional conduct questions among lawyers observing the case. Many are wondering precisely why a local attorney who “informally consulted” with Gregory and Travis McMichael, the two men now charged with murdering Arbery, would choose to release the video which led to widespread outrage and eventually to criminal charges.
Relevantly, the Times reported that the local criminal defense attorney, Alan Tucker, “had informally consulted with the suspects” now charged with murder. Tucker told the Times “that the video had come from the cellphone of a man who had filmed the episode and that he [Tucker] later gave the footage to [a local] radio station.” A radio station employee, Scott Ryfun, confirmed that Tucker was the source of the video. The radio station was the first organization to release the now-viral graphic footage. The Times characterized this sequence of events as “a twist emblematic of the small-town politics that have defined the case” because the “source turned out to be a criminal defense lawyer in town.”
William “Roddie” Bryan recorded the video; he gave it to the police before he also gave it to Tucker, the Times said. Yet it was arguably the outrage which came in the wake of the video that led higher authorities to finally act after the original officials on the case were scolded for not doing enough.
It is an interesting outcome for the two defendants who reportedly sought so-called “informal” counsel from Tucker — something which is generally not contemplated by the law.
Tucker told the Times he believed the video would “dispel rumors.” He also explained his rationale for releasing it. According to the report:
Asked why he had leaked the video, Mr. Tucker said he had wanted to dispel rumors that he said had fueled tension in the community. “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back,” Mr. Tucker said.
“It got the truth out there as to what you could see,” he added. “My purpose was not to exonerate them or convict them.”
Tucker has made clear though other interviews that he is not representing the McMichaels. Still, the professional conduct implications of his decision to leak the video are raising eyebrows among some members of the legal community. Generally, information disclosed to or received by attorneys in contemplation of a representation is confidential — even when it is provided before the attorney is formally hired, ethics rules and experts say.
Rule 1.6 of the Georgia Rules of Professional Conduct, which governs attorneys, says lawyers “shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent” (emphasis added). There is wiggle room in that rule, certainly; but its core presence is that information must be safeguarded lest it backfire. There are explicit exceptions for disclosures “impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the court.” It is unlikely they apply here. There are further exceptions which allow, but do not require, an attorney to disclose information which might protect someone who faces “harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law,” including “serious injury or death.”
There are several additional exceptions to the rule which suggest at first blush that Georgia contemplates a lesser degree of confidentiality than the model rule promulgated by the American Bar Association. Additionally, Georgia law does not contain a Rule 1.18, which is part of the model rules followed by many states. Rule 1.18 outlines a lawyer’s duties to prospective clients, and they include confidentiality. “Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information,” the model rule states.
The legal community is questioning Tucker’s tactics.
This lawyer who consulted with suspects in the #AhmaudArbery case and then leaked the video may have his own problems. He cites attorney-client privilege but by leaking the video he may have triggered the arrests. https://t.co/ZbTqsIcntj
— Philip Holloway ⚖️✈️ (@PhilHollowayEsq) May 9, 2020
— Linda Kenney Baden (@KenneyBaden) May 9, 2020
“It was certainly not in the McMichaels’ interest,” NYU Law Prof. Stephen Gillers told Law&Crime, to have a lawyer with whom the eventual defendants consulted “disclose the video to a news outlet.” Gillers is the literal textbook authority on professional conduct matters.
“Georgia Rule 1.6 differs from the ABA rule but not in ways that would change the analysis,” he explained. Some are also noting the line between “privilege” and “confidentiality,” which is critical here.
Ahmaud Arbery Video Was Leaked by a Lawyer Who Consulted With Suspects
“The lawyer, Alan Tucker, declined to comment on his conversations with the suspects, citing attorney-client privilege. He later said he would not be representing them.” https://t.co/EtHXJxO2NR
— Ross Garber (@rossgarber) May 9, 2020
Gillers said this distinction actually weighs against the lawyer’s actions in this case.
“Tucker got the video from Bryan, who was not his client. Privilege (which Tucker cites), and which is different from confidentiality under Rule 1.6, is inapplicable because the source was a third person, not the client.”
In other words, the distinction between confidentiality and privilege is all the more important given the video’s source. Confidentiality is broader, Gillers noted:
The video is confidential under Rule 1.6 even though Bryan, a non-client, is the source. There is some ambiguity whether it would be confidential if Tucker got it after he was no longer representing the defendants, and they were no longer clients. In my view, it would be confidential even then.
Gillers’ analysis suggests that even this so-called “informal consultation” queues up the imputation of attorney-client rules.
What of the fact that the authorities already had obtained the video? According to Gillers, “the fact that Bryan may have disclosed the video to others, or that others had it from whatever source, does not change the duty of confidentiality” Tucker owed to Gregory and Travis McMichael, the eventual defendants.
Gillers also added that the lack of a strict Rule 1.18 governing prospective Georgia clients does not change his opinion. That rule applies in a much more technical situation not present here. “The main purpose of 1.18 is to permit adversity to a prospective client despite 1.9(a) [duties to former clients] in limited circumstances. It does not affect 1.6.”
The policy behind these rules is simple. People who go to attorneys expect to be defended, not thrown further under the bus. The police already had the video; they and prosecutors could have moved the case forward on their own. Despite Tucker’s laudable goals to preserve the truth, which is generally discussed in other conduct rules, his stated purpose to neither “exonerate” nor to “convict” is puzzling.
There are many unknown facts and many areas for concern. The national interest in this case will likely make this an area of hot debate for some time among legal circles. As one frequently quoted, high-profile attorney summarized for Law&Crime on background:
A lawyer generally has ethical duties to a potential client who consults him even if the lawyer isn’t ever engaged. It could get sticky here if the potential client in this situation didn’t authorize the release of the video. And, while publicizing the video has been a major benefit to the public at large, it doesn’t seem to have helped the potential client. In any event, this kind of tension between a client’s (or potential client’s) interests and the public interest is not uncommon territory for defense lawyers.
Law&Crime reached out to Tucker for insight on the professional conduct rationale for his decision to release the recording; no response was received. We will update this piece if we hear from him.
[Image via screen capture from the Atlanta Journal-Constitution/YouTube]
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