Even in our current era of intense polarization, the video of Ahmuad Arbery being pursued, shot, and killed by father and son Gregory and Travis McMichael united most of the country over the past week. Donald Trump called the footage “very, very disturbing” while Joe Biden described Arbery as “being lynched before our very eyes.” Although Arbery was killed all the way back in February, it was only after the video went viral that the McMichaels were arrested following widespread outrage.
In a bizarre twist to the story, the New York Times reported that the person who leaked the video to the media “turned out to be a criminal defense lawyer in town who had informally consulted with the suspects.” The lawyer, Alan Tucker, explained that his reason for leaking the video was to dispel rumors that had caused tension in the community. He added that releasing the video “got the truth out there.” “My purpose was not to exonerate them or convict them.” In an interview published today on law.com, he responded to criticism of his involvement stating, “If we tell the truth, we get justice. It’s why we take an oath to tell the truth, the whole truth and nothing but the truth.”
Before I dive into Tucker’s involvement, let me state the obvious. Based on what the video shows, the McMichaels absolutely should be charged with murder and whoever represents them will have their work cut out for them. No reasonable person has any pity for their current situation. This post is not about justice. The just thing was for the McMichaels to be arrested and to ultimately face trial.
The reason that I’m writing this post is because as a criminal defense attorney, I am shocked by Tucker’s involvement and his attempts to justify his actions. According to the law.com article, Tucker has been a practicing lawyer for almost four decades. Surely, he knows about attorney-client confidentiality. Hell, any first year law student, and probably most lay people, are familiar with the concept of attorney-client confidentiality. The basic idea is that lawyers can’t share what they’ve discussed with clients or prospective clients without their permission. While the Times article described an “informal” consult, whatever that means, there is no difference when it comes to confidentiality. Any conversation with a prospective client, no matter how “informal,” is covered by confidentiality.
The reason for attorney-client confidentiality is straight-forward. Defense attorneys are supposed to defend people, not throw them under the bus. It’s not possible to have a functioning adversarial system if people charged with crimes have to worry that their defense attorneys might turn on them at any moment in order to “get the truth out there.” For some people, this might be a difficult concept but a defense attorney’s role is not to “seek justice” or to “to tell the truth, the whole truth, and nothing but the truth.” Our role is to defend our clients. Tucker did exactly the opposite of serving his clients. No amount of spin on his part makes stabbing his clients in the back honorable. It doesn’t matter if they didn’t ultimately hire him. It doesn’t matter if the police already had the video. He had a duty of loyalty and confidentiality to them from the moment they had contact with him.
This situation is sure to inspire future law school ethics exam questions because it presents a classic situation where our ethics as a human being may collide with our ethics as a lawyer. If Alan Tucker were a regular citizen who leaked the video, I would view his actions as heroic. But for the leaked video, it seems possible, if not likely, that the entire incident was being swept under the rug. That would have been disgusting. But Alan Tucker was not a regular citizen. He was a lawyer who was duty bound to protect his clients whether they ended up hiring him or not.
Alan Tucker might be a nice guy. He probably considers what he did to be morally righteous. But what he did should result in him being disbarred. His actions led to his clients being arrested for murder which is inexcusable. I’m glad that Ahmaud Arbery’s killers have been arrested. I am also disturbed that an attorney brazenly violated his oath. Both things can be true.
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