U.S. v. Ruehle, No. 09-50161 (9-30-09). Defendant was the financial officer of a company that was accused of fraud via backdating stock options. The story broke in the Wall Street Journal, and the civil suits soon started being filed. The company's lawyers met with the board, and individually with officers. Later, some of the officers were criminally charged. This defendant argued to the district court that his conversation with the lawyers were protected by the attorney-client privilege. The district court agreed. The 9th (Tallman joined by Fisher and Gould) disagreed. The 9th pointed out that the privilege is narrowly construed, and that the federal courts use an eight-part test laid out in In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992) (below). In that test, the defendant bears the burden. In the test the district court used, which derived from state practice, the burden shifted to the government, as the focus was on the defendant's own reasonable belief that a relationship existed. The defendant here failed in establishing that statements he made at a meeting were "in confidence" because the lawyers were lawyering up for the company, expressed this, and that was why they met with him.
The test is: "(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the protection is waived.
U.S. v. Paul, No. 08-30125 (9-30-09). This is an order denying en banc review. The case concerned the issuance of a mandate, although the backdrop was the reasonableness of a sentence. In dissenting from the denial of en banc, O'Scannlain (joined by Kleinfeld, Tallman, Callahan, and Bea) admonish the criminal defense bar that this is not a reasonableness of sentence case, and should not be cited as such, and woe to those who do. Reinhardt and M. Smith, in a concurrence to the denial, tisk tisked the dissent. No judicial love lost between the camps.