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The electronic voting machines produced by Diebold Systems Inc. have been a lightning rod in the field of electoral law. Now the controversial machines have sparked problems at 2,200-lawyer Jones Day after confidential documents written by the firm’s attorneys were leaked to the Oakland Tribune. Jones Day has sued the newspaper, insisting that it return confidential communications between itself and Diebold, which it contends are protected by attorney-client privilege. The brouhaha pits a fundamental tenet of the legal profession against equally sacrosanct protections against forcing the media to reveal the sources and nature of leaks. The situation also raises questions about how the confidential attorney work product was divulged. Robert Mittelstaedt, a partner in Jones Day’s San Francisco office, called the documents “stolen property.” “We are taking this very seriously, as any law firm would do, and we are conducting the appropriate investigation,” Mittelstaedt said Friday. Last week, a Los Angeles judge ordered the Tribune to turn over all unpublished documents to the court. The judge allowed the newspaper to retain documents that had already been published on its Web site. The paper has filed an appeal. Media experts said the situation is unusual. “It raises very interesting and difficult policy [questions] about whether a court should make a decision to give it back,” said Neil Shapiro, a Monterey solo attorney who specializes in media law. “It seems to me the shield law still is pretty strong, in the sense that it does not require the press to give up or even acknowledge that it has unpublished information,” says Shapiro. The documents detail how attorneys in Jones Day’s Los Angeles office warned Diebold that the company’s uncertified voting machines violated California election law and the company’s contract with Alameda County. The memos peg the cost of defending Diebold at between $535,000 and $925,000 for two months. Secretary of State Kevin Shelley is investigating the company after reports that it loaded uncertified software onto the machines shortly before elections. The machines had high failure rates in several counties. It is unclear how the confidential documents were obtained by the Tribune. Jean-Paul Jassy, the attorney representing the newspaper, would not comment on how the newspaper’s reporter acquired the material. Doug Stone, press secretary for the secretary of state’s office, said the agency never had access to the leaked material. One possibility is that someone within Jones Day is responsible. If so, that would be a blow to the firm’s reputation and could lead to other problems. “The general principle is the law firm has an obligation to safeguard confidential client information and may reveal confidential client info only in very limited circumstances, and generally for the benefit of a client,” said Stephen Gillers, a legal ethics expert at the NYU School of Law. Occasionally, a law firm inadvertently releases privileged information during discovery. But it’s extremely rare for confidential attorney work product to be intentionally leaked. “We don’t know the facts, but if that were to have occurred, it certainly would be very troubling,” said Keith Wetmore, chairman of Morrison & Foerster. “It goes to the core of the confidence the client has in their law firm and the entire risk management structure that firms have in place to maintain those client confidences,” Wetmore said. Among other consequences, some legal experts speculated that the firm could be vulnerable to a legal malpractice suit from Diebold if it turns out someone at Jones Day breached the attorney-client privilege. The leak comes as the bar has been grappling with loosening the attorney-client privilege in certain circumstances. The Sarbanes-Oxley Act calls for relaxing the attorney-client privilege so that in-house attorneys would have to report violations of securities laws. But Gillers said that’s different than an attorney at a firm leaking information about a client to the press. “The idea that in some circumstances, the lawyer’s obligation to a court or a government agency who are the victim of client misconduct can justify or require the lawyer to reveal confidential client information is much in discussion right now,” Gillers said. “But that discussion has never included secret leaks to the press. That’s not seen as legitimate remedy to the problem.”

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