Whistleblower Blowback

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Interesting, detailed account from the Oakland Tribune about Steven Heller, a temp worker for Jones Day, a law firm working for controversial e-voting kings Diebold. Heller slipped documents he obtained regarding Diebold's use in California of officially unapproved software to Black Box Voter activist Bev Harris, and now faces criminal prosecution for it. While two weeks after the documents Heller passed on became big public news, the state of California withdrew its e-voting contracts with Diebold (temporarily)

Heller himself remained largely unknown until two weeks ago when the Los Angeles District Attorney's Office charged him with a computer crime, second-degree burglary and receiving stolen goods–offenses carrying up to four years in prison–and propelled him to folk hero status among voting reform advocates, computer scientists and critics of electronic voting.

California officials also deny that Heller's documents were any part of the reason they withdrew their approval of Diebold, for what it's worth, which should make it harder for Heller to convince a jury that his whistleblowing was necessary for a greater public good.

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  1. The guy would basically have to be a moron to think that he was going to get away with this, especially since he signed a confidentiality agreement.

    Even if he weren’t being criminally prosecuted, most whistleblower laws wouldn’t protect him, since they only cover reporting of misconduct to the proper officials, or in some cases to supervisors within the employer’s chain of command. But feeding documents to private activists is usually NOT protected under such laws, interestingly enough.

  2. Hay!
    In the “Stem Cell” thread (only) I keep getting this msg:
    Thank You for Commenting
    Your comment has been received. To protect against malicious comments, I have enabled a feature that allows your comments to be held for approval the first time you post a comment. I’ll approve your comment when convenient; there is no need to re-post your comment.

    Needless to say, my 2 cents worth never showed up.
    It had some URLs in it…izzat naughty?

  3. Mr. F. Le Mur,

    Given the spotty technical behavior of this blog I wouldn’t necessarily assume that it was a conscious decision. In other words, it might just the gerbils falling down on the job.

  4. This is what comes of watching too many Rockford Files episodes, where the hero steals documents, breaks into offices, etc., etc., but never gets into trouble with the law because, you know, he catches the bad guy in the end. (I’m still a Rockford fan, though.)

  5. I’m a practicing attorney and I guess this makes me biased, but I’m appalled at the idea that one of my employees could/would disclose confidential client material. Its not my area of practice, but I’m interested in the interection between whistleblower principles and the attorney-client privilege.

  6. As a practicing attorney as well, I would be thinking more along the lines of “shallow grave” than “criminal complaint” if one of my staff did this.

    Seriously, though, I would definitely prosecute. Pour encourager les autres, doncha know.

  7. Its not my area of practice, but I’m interested in the interection between whistleblower principles and the attorney-client privilege.
    Heller should’ve made his accusations to some State agent rather than an activist, and without swiping the evidence. But he was an out-of-work actor, not an attorney, and probably didn’t know what he was getting into.

    In other words, it might just the gerbils falling down on the job.
    It happened there about 4 times yesterday and again today – nowhere else. After spewing about NIH, I *need* to post!

  8. ChrisO – I didn’t see a mention of a confidentiality agreement in the article. Do you know about one, or are you guessing that no law firm would be foolish enough to hire a temp staffer without getting them to sign one?

    Is it typical for a law firm to permit any temporary employee (in particular a tape-to-paper transcriber) access to all of a client’s or case’s records? It seems like the Jones Day folks need to invest in management controls, IT systems, and solid security protocols for their multi-million dollar billing clients.

    Before computers, I imagine each attorney kept their own need-to-know documents under lock and key, and directly, actively managed sharing them with staff (secretarial pool, paralegals) as required. That workflow shouldn’t change in the computer age.

  9. Mr. F. Le Mur,

    *shrug*

    E-mail Cavanaugh?

  10. I once had to sign a confidentiality agreement for a temp job with Bechtel that was so huge I almost felt like I needed an attorney to negotiate. I think there was a provision in there about not eating moldy bread, because it might cause you to hallucinate & inadvertently disclose confidential information.

    But seriously, this guy was a pea-brain for not getting in touch with a lawyer before he did this. But maybe judge will take that into account.

  11. Keith: ChrisO – I didn’t see a mention of a confidentiality agreement in the article. Do you know about one, or are you guessing that no law firm would be foolish enough to hire a temp staffer without getting them to sign one?

    He did sign a confidentiality agreement. Here’s the quote from the Tribune article: “The evidence gathered by the district attorney’s investigators includes a copy of Jones Day’s confidentiality agreement, signed by Heller on Feb. 11, 2004.”

    And yes, no major law firm EVER hires anyone–from a receptionist to a partner to a temp worker–without having them sign rigorous confidentiality agreements. I have worked as a temp data-entry person at a major law firm and signed such an agreement. I also signed one when I worked in a more senior managerial capacity at a another big firm. They are really paranoid about this kind of stuff, and obviously for good reason.

    Oh, by the way, Heller still would have violated his confidentiality agreement even if he had blown the whistle to a government official. In that event, California law would likely protect him from retaliatory employment actions (being fired, basically), but he still might well be on the hook for losses incurred by the firm due to his breach of the agreement. That area of the law is still evolving in many states, and Calif. has more vigorous whistleblower protection than most.

    By the way, among overworked law firm associates, Jones Day is known as “Jones Day & Night.”

  12. ChrisO,

    When you worked as a temp data-entry clerk for a major law firm, did you have actual access over the network to all files, all files for the case or client you were assigned to, or access limited to the actual deliverables on which you were working and referencing?

  13. Yeah, it sounds illegal. And since he was working for a law firm, I don’t think he can even legally slip the documents to the government, can he? Wouldn’t it depend on whether Diebold was actually committing a crime by using the unapproved software?

    Confidentiality agreements cannot be used to protect a criminal conspiracy, as I understand it, including fraud. Lawyers are bound not to disclose evidence damaging to their client, though. Heller was only a temp…this is a much more interesting case than anything on the true-crime shows. Too bad they won’t bother to cover it.

  14. When you worked as a temp data-entry clerk for a major law firm, did you have actual access over the network to all files, all files for the case or client you were assigned to, or access limited to the actual deliverables on which you were working and referencing?

    We had no access at all to the firm’s main network. In fact, all of the temps assigned to this particular project (cataloging the privilege status assigned by the firm to each document in a multi-million page discovery request) were housed in a single work area and did not even have access to other parts of the firm’s office space. We worked on a specially created database and had no portal (as far as I know) to the firm’s regular network.

    Moreover, before we started, they spent quite awhile lecturing us as to the issue of confidentiality. I was probably the only temp who had a law degree or any kind of legal training, and from what I remember no one else on the job would have given two shits about the merits of the stuff we were cataloging (which wasn’t have been specific enough to be much of a confidentiality problem, anyway–we were cataloging index cards with the privilege determinations, not the docs themselves). It was just another random data entry job for them–and for me, as well. Only someone with an inside knowledge of the case would have understood any of it.

    What Heller was doing, obviously, was quite different. I’m a little surprised that the firm had temps doing such sensitive work–usually the attorney’s personal secretary does this kind of transcribing work. Often because they are the only ones who know how to accurately turn the lawyer’s confusing and self-contradictory memo gibberish into a presentable English-language document. 🙂

  15. It amazes me (another lawyer) that anybody under the age of 60 dictates stuff and has secretaries/temps/whoever transcribe it. I’m not a very good typist, and I can still write my own documents directly into the computer faster than it would take someone to dictate and then read/fix what a secretary makes of it.

  16. It amazes me (another lawyer) that anybody under the age of 60 dictates stuff and has secretaries/temps/whoever transcribe it. I’m not a very good typist, and I can still write my own documents directly into the computer faster than it would take someone to dictate and then read/fix what a secretary makes of it.

    Me too, except that having worked at a big firm (as a non-lawyer), the “master of the universe” types at those firms tend to be either oblivious about how to do this stuff or seem to feel that it is beneath them, somehow. Also, there is the billables factor–a secretary’s billable time for typing/formatting a letter is significantly cheaper than it is for a lawyer to do it. And it does leave the lawyer free to get on to the next lawyerly task, even if the resulting letter/memo/whatever ultimately takes longer to complete.

  17. If defrauding the public is an issue, it is amazing the # of attorneys who want to protect that, without disclosing the crime fraud exception to some confidentiality ruses, as if some attorneys support undermining democracy by companies who give GOP donations, to get voting machine deals. But, it seems some lawyers were quick to get some D. A. to nail the poor guy with indictments.. So much for American’s fragile democracy, when rigging elections(issues) on that are just swept under the rug, by corporate lawyers, who seem to be hired guns to intimidate people, to obstruct evidence in some areas…..
    If the D. A. don’t make the charges stick…. then what…..???a mere charge at this point..in the wake of what… some influence on the D. A. to go on some… crusade…>> / or what ???.
    Voting machines that don’t have a clear system of accountability is an issue.. it is not going away.
    If anything it is underscored by a lot of matters..

  18. If defrauding the public is an issue, it is amazing the # of attorneys who want to protect that, without disclosing the crime fraud exception to some confidentiality ruses, as if some attorneys support undermining democracy by companies who give GOP donations, to get voting machine deals. But, it seems some lawyers were quick to get some D. A. to nail the poor guy with indictments.. So much for American’s fragile democracy, when rigging elections(issues) on that are just swept under the rug, by corporate lawyers, who seem to be hired guns to intimidate people, to obstruct evidence in some areas…..
    If the D. A. don’t make the charges stick…. then what…..???a mere charge at this point..in the wake of what… some influence on the D. A. to go on some… crusade…>> / or what ???.
    Voting machines that don’t have a clear system of accountability is an issue.. it is not going away.
    If anything it is underscored by a lot of matters..

  19. If defrauding the public is an issue, it is amazing the # of attorneys who want to protect that, without disclosing the crime fraud exception to some confidentiality ruses, as if some attorneys support undermining democracy by companies who give GOP donations, to get voting machine deals. But, it seems some lawyers were quick to get some D. A. to nail the poor guy with indictments.. So much for American’s fragile democracy, when rigging elections(issues) on that are just swept under the rug, by corporate lawyers, who seem to be hired guns to intimidate people, to obstruct evidence in some areas…..
    If the D. A. don’t make the charges stick…. then what…..???a mere charge at this point..in the wake of what… some influence on the D. A. to go on some… crusade…>> / or what ???.
    Voting machines that don’t have a clear system of accountability is an issue.. it is not going away.
    If anything it is underscored by a lot of matters..

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