more on Diebold Whistle-Blower, legal staff "stealing documents," and attorneys keeping quiet about crimes]

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject: RE: [IP] more on Diebold Whistle-Blower, legal staff "stealing
documents," and attorneys keeping quiet about crimes
Date: Tue, 28 Feb 2006 22:48:55 -0500
From: Ethan Ackerman <eackerma () u washington edu>
Reply-To: eackerma () u washington edu
To: dave () farber net

Greetings Dave,
Chris, Rob & Jonathan brought up key points about how 'whistleblowing' is
more murky when employees of a law firm disclose documents that are subject
to the attorney-client privilege - BUT there is more to this that merits
recognizing.

Almost everyone agrees that getting legal advice to avoid (or stop) breaking
the law is good, and that's part of why an attorney-client privilege is
there.  It would also be pointless to have a privilege if any employee of
the lawyer could break it.
BUT, on the other hand, this privilege, by law, doesn't extend indefinitely.
Almost every state has some type of exception for the commission of crimes -
generally, attorneys CAN break privilege to report contemplated crimes
involving death or serious bodily injury, BUT in some states lawyers can
break privilege for even lesser crimes.

The American Bar Association, in August 2003, after many changes back and
forth in various drafts, finally adopted a permissive “financial fraud”
confidentiality exception to the Model Rules that it recommends each state
pass. (This situation might have been different IF California had adopted
this exception...)

In California, where this took place, the relevant rule allows (BUT NOT
requires) an attorney to break privilege if "necessary to prevent a criminal
act " that is "likely to result in death or substantial bodily harm."  So it
looks like Jones Day attorneys couldn't have broken privilege even if they
wanted to.

On the other hand, in other states, the privilege may be broken by a lawyer
to report ANY contemplated crime - for example, in Washington state, the
attorney could have called the Attorney General if she believed it
"reasonably necessary"..."to prevent the client from committing a crime."

In this particular case, Jones Day attorneys began preparing defense for,
and the California Secretary of State recommended, criminal charges against
Diebold.  So this isn't just an academic hypothetical...

See
http://www.yuricareport.com/Corporations/DieboldsSecretFears.html (for the
privileged memos)
and
http://wired.com/news/evote/0,2645,63191,00.html (for the Secretary of
State's allegations of criminality)


FYI, in the end, the Oakland Tribune was sued by Jones Day, but won and kept
the memos up.  The Calif. attorney general ultimately decided not to indict
Diebold, but did sue it for fraud - Diebold settled for ~$3million.

(Please don't take the above comments to be how I think the law on
attorney-client privilege should be, I'm just sharing how it IS.)

-Ethan Ackerman





-------- Original Message --------
Subject: Re: [IP] more on Diebold Voting Machine Whistle-Blower being
prosecuted for "Stealing documents"]]
Date: Tue, 28 Feb 2006 13:15:47 -0500
From: Chris Beck <cbeck () pacanukeha net>
To: dave () farber net, Rob McMillin <scareduck () yahoo com>

Rumour has it Dave Farber, on or about 28.Feb.2006 12:30, forwarded:
> Date: Tue, 28 Feb 2006 08:35:03 -0800 (PST)
> From: Rob McMillin <scareduck () yahoo com>
>
> And so what?  Diebold was absolutely breaking the law, and in a way
> fundamentally destructive to our very way of government.  Mr. Goldstein
> can go on all day about the law and its majesty, but at the end of the
> day, which is more corrosive to that same body of law he purports to
> hold dear: making possible widespread, easy, and undetectable voting
> fraud?  Or getting evidence of this same published in the press?

The problem, Rob, is that there is scads of evidence of Diebold's
malfeasance
and wilful corruption of the election process, much of it previously
downloaded
from their own ftp servers.  I would like to see them shot, skinned and
fed to
weasels as much as the next guy, but at the same time I want the legal
process
to be just as sacrosanct - and they are _both_ under heavy assault these
days.
It's also sad to say that newspaper he went to with the documents would
not have
published anything without them given the weight of evidence gathered by Bev
Harris and other at blackboxvoting.org .

[...]


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