                                                                            FILED
                              FOR PUBLICATION                               SEP 30 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 09-50161

             Plaintiff - Appellant,             D.C. No. 8:08-CR-00139-cjc-2

  v.
                                                OPINION
WILLIAM J. RUEHLE,

             Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                     Argued and Submitted September 1, 2009
                              Pasadena, California

                                        Filed

Before: FISHER, GOULD, and TALLMAN, Circuit Judges.

                   Opinion by Circuit Judge Richard C. Tallman

TALLMAN, Circuit Judge:

       We here explore the treacherous path which corporate counsel must tread

under the attorney-client privilege when conducting an internal investigation to

advise a publicly traded company on its financial disclosure obligations.
Defendant-Appellee William J. Ruehle is the former Chief Financial Officer

(“CFO”) of Broadcom Corporation, a California-based, publicly traded

semiconductor supplier that came under intense scrutiny for its suspected

backdating of company stock options. Following a government investigation,

Ruehle was criminally indicted for his involvement in an alleged backdating

scheme that ultimately resulted in Broadcom’s restatement of its earnings to

account for approximately $2.2 billion in additional stock-based compensation

expenses. The district court held an evidentiary hearing and, after evaluating the

extensive briefing and evidence presented, issued an order suppressing all evidence

reflecting Ruehle’s statements to attorneys from Irell & Manella LLP (“Irell”),

Broadcom’s outside counsel, regarding the stock option granting practices at

Broadcom. The court found that at the initial stages of the inquiry by Irell (called

the “Equity Review”) an attorney-client relationship also existed with the CFO

individually, and not just with Broadcom, and that the lawyers breached their

ethical duties to their client Ruehle in disclosing what he had told them in a

preliminary interview.

      The government filed an interlocutory appeal. We have jurisdiction

pursuant to 18 U.S.C. § 3731, and we reverse and remand for further proceedings.

                                           I


                                           2
      In March 2006, the Wall Street Journal published the first of a series of

articles called “The Perfect Payday,” which suggested that a number of public

companies were backdating stock options granted to their employees.1 Shortly

thereafter, in mid-May 2006, an investor rights group publicly identified Broadcom

as one of the corporations that appeared to have engaged in backdating. As a result

of the media attention and in anticipation of an inquiry from the Securities and

Exchange Commission (“SEC”), Broadcom’s Board of Directors and company



      1
         Stock options give individuals the right to buy shares of stock on a future
date at a set price, commonly known as the “exercise” or “strike” price. Typically,
as was the practice at Broadcom, stock options granted to employees could not be
exercised until the end of a fixed vesting period. Once an option vested, the holder
could exercise it and purchase stock from the company at the strike price. Thus,
options that have a strike price below the current trading price in the stock market
are commonly referred to as being “in the money,” whereas options with a strike
price above the current trading price are considered “underwater.”
       The strike price is typically equal to the market price on the date that the
option is granted. “Backdating” refers to the practice of recording an option’s
grant date and strike price retrospectively. See United States v. Reyes, 577 F.3d
1069, 1073 (9th Cir. 2009). The ability to manipulate the strike price maximizes
the benefit to the option holders. Selection of an initial grant date when the share
price, and thus the strike price, is at its lowest during a given period will increase
the amount an option is “in the money” or, in some cases, may determine whether
an option is “in the money” at all, rather than “underwater.” In either case, the
employee may immediately exercise the option to buy shares at the optimally low
strike price, sell the stock at the current market price, and pocket any gain.
“Backdating is not itself illegal, provided that the benefit to the employees is
recorded on the corporate books as a non-cash compensation expense to the
corporation, in accordance with an accounting convention promulgated in 1972
referred to as Accounting Principles Board Opinion No. 25.” Id.

                                           3
management decided to bring in outside counsel to commence an internal review

of the company’s current and past stock option granting practices. Ruehle, as

Broadcom’s CFO, was among those intimately involved in that decision from the

outset. On May 18, 2006, Broadcom’s Audit Committee engaged Irell, a private

law firm with which it had longstanding ties, to conduct the Equity Review by

investigating the propriety of the measurement dates utilized by Broadcom in its

option granting process and identifying those grants which failed to meet the

measurement date requirements of generally accepted accounting principles.2 Irell

immediately commenced its review, which entailed collecting corporate documents

and records and conducting interviews with past and current Broadcom employees.




      2
         The relationship between Broadcom and Irell runs deep, as Ruehle
contends, and dates back to before 1998 when Irell assisted Broadcom in its initial
public offering of stock (“IPO”), which led to its becoming an investor-owned
public company. Irell itself acquired stock during the IPO and its partners profited
handsomely when the stock price rose. Since then, Irell has represented Broadcom
in relation to numerous acquisitions and the firm has handled several litigation
matters for Broadcom and its officers and directors. At the time it was engaged to
conduct the Equity Review, the firm was counsel of record for Broadcom and its
management employees named as individual defendants in a then-unrelated
securities class action, Jin v. Broadcom Corp., pending in California state superior
court. Moreover, Irell had recently represented Broadcom, as well as several of its
officers and directors, including Ruehle, in an unrelated securities action referred
to as the “warrants litigation.” The warrants litigation settled several months prior,
in December 2005.

                                           4
      Broadcom representatives, including Ruehle, met with Irell lawyers on May

24 and 25, 2006, to discuss the scope of the Equity Review. It was agreed that Irell

would report the results of its inquiries to the Audit Committee. It was also

decided that the Board would not appoint a panel of independent, outside directors

to oversee the Equity Review. On May 26, 2006, a formal meeting of the Audit

Committee was convened. Ruehle and other senior Broadcom executives, several

members of the Board, and Irell lawyers were among those present. During the

hour-long meeting, Irell partner David Siegel explained the nature of typical

“backdating” investigations and discussed the status of Irell’s internal review,

including the necessary involvement of Broadcom’s outside independent auditors,

Ernst & Young LLP, who would have to review and opine on the accuracy of the

company’s audited financial statements and regulatory filings. Siegel also

cautioned “that Irell can handle issues related to the proper accounting for option

grants but that if an issue of self-dealing or management or Board integrity arose, a

special committee of independent directors would need to be appointed and special

independent counsel engaged to conduct that inquiry.” The Audit Committee and

other representatives of Broadcom made clear that the intent was to turn over the

information obtained through the Equity Review to the auditors, to fully cooperate




                                          5
with government regulators, and, if necessary, to self-report any problems with

Broadcom’s financial statements.

      As many within Broadcom had anticipated, civil lawsuits soon followed the

media reports about the company’s backdating of stock options. On May 25, 2006,

a shareholder derivative suit captioned Murphy v. McGregor was filed in

California federal court. The following day, on May 26, the plaintiffs in the

ongoing securities class action in California state superior court, Jin v. Broadcom

Corp., filed an amended complaint. Both the Murphy action and the Jin amended

class action now alleged wrongdoing in relation to Broadcom’s stock option

granting practices; both suits named Broadcom and also personally named Ruehle,

among other Broadcom officers and directors, as an individual defendant.

      On May 30, 2006, Broadcom’s in-house General Counsel David Dull sent an

e-mail to various Broadcom employees, including Ruehle, notifying them of the

Murphy action and of the amended complaint filed in the Jin securities class action.

Dull invited anyone with concerns to contact either him or Irell attorneys Siegel,

Kenneth Heitz, or Dan Lefler. Shortly after receiving Dull’s message, Ruehle

received a separate e-mail from Heitz, one of the Irell partners with whom Ruehle

had already conferred as part of the Equity Review. Heitz’s e-mail updated Ruehle

concerning the scheduling of interviews of three current or former Broadcom


                                          6
employees and, finally, inquired, “if you have open time on Thursday Dan Lefler

and I would like to spend an hour or so with you . . . .”

      As arranged, Heitz and Lefler met with Ruehle in his office on Thursday,

June 1, 2006, to discuss Broadcom’s stock option granting practices and his role as

the company’s CFO.3 Ruehle had subsequent, brief discussions with the Irell

lawyers as the Equity Review continued and the lawyers reported back to the CFO

their progress in unearthing the facts. At no point did the topic of the civil

securities lawsuits arise as it might relate to Ruehle personally. Nor did Ruehle

ever indicate to the lawyers that he was seeking legal advice in his individual

capacity. It is the substance of these June 2006 interactions that lies at the center

of the present dispute.




      3
        At the evidentiary hearing the Irell attorneys testified that they provided
Ruehle a so-called Upjohn or corporate Miranda warning. Such warnings make
clear that the corporate lawyers do not represent the individual employee; that
anything said by the employee to the lawyers will be protected by the company’s
attorney-client privilege subject to waiver of the privilege in the sole discretion of
the company; and that the individual may wish to consult with his own attorney if
he has any concerns about his own potential legal exposure. See Upjohn Co. v.
United States, 449 U.S. 383, 393–96 (1981). Ruehle testified that he did not recall
receiving any such warnings. As discussed infra, the district court seems to have
disbelieved the Irell lawyers who took no notes nor memorialized their
conversation on this issue in writing, and it apparently credited Ruehle’s testimony
that no such warnings were given. We cannot say that this finding is clearly
erroneous on the record before us.

                                           7
      In late June 2006, Irell advised Ruehle to secure independent counsel with

respect to the investigations and the pending civil suits. Ruehle retained the law

firm Wilson Sonsini Goodrich & Rosati to represent him individually.

Nevertheless, Ruehle remained heavily involved in the company’s internal review

and he was privy to Irell’s reports to the Audit Committee of its findings and

ultimately the disclosures of the information gathered by Irell to Ernst & Young.

      In August 2006, at Broadcom’s direction, Irell fully disclosed the

information obtained from the Equity Review to the Ernst & Young auditors. Irell

had a series of meetings with Ernst & Young in which the lawyers reported what

they had found, which necessarily included the substance of Ruehle’s June 1, 2006,

interview with Heitz and Lefler. Ruehle was present for at least some of these

meetings between Irell and the Ernst & Young auditors. There is no dispute that

the Irell lawyers regularly updated Ruehle and others in senior management about

the progress of the Equity Review and their meetings and contacts with the

auditors.

      The Equity Review revealed several accounting irregularities with respect to

certain stock option grants. In January 2007, on the advice of its outside counsel

and auditors, Broadcom restated its earnings as reported in its financial disclosure




                                          8
statements to include a total of $2.2 billion in previously undisclosed compensation

expenses.

      The SEC and the United States Attorney’s Office commenced formal

enforcement and grand jury investigations of several company executives in

relation to Broadcom’s stock option granting practices. In May and June 2007,

with Broadcom’s authorization, government investigators interviewed Irell

attorneys Heitz and Lefler by telephone regarding their conversations with Ruehle

in June 2006. The information they provided was summarized in FBI Form FD-

302 reports of investigation, which are part of the sealed record. When he learned

that the government intended to use this information against him in connection

with possible criminal charges, Ruehle objected and claimed that any statements to

the Irell attorneys were protected by his attorney-client privilege. Ruehle also

insisted, after the fact, that whatever he said to Irell could not be disclosed without

his prior written consent.

      On June 4, 2008, a grand jury in the Central District of California indicted

Ruehle and Henry T. Nicholas III—Broadcom’s founder, and former President and

Chief Executive Officer—on charges of conspiracy, securities and wire fraud, and

various other violations of Title 15 of the United States Code. The indictment

alleges that beginning in or around 1999 and continuing until at least in or around


                                           9
2005, Nicholas and Ruehle, among others, engaged in a fraudulent scheme and

conspiracy to disguise, conceal, understate, and mischaracterize compensation

expenses Broadcom was required to recognize in connection with granting its stock

options to various employees. Among the allegations of wrongdoing, the

indictment claims that as part of the backdating scheme the defendants paid a

former employee who threatened to expose the scheme, concealed the payoff from

Broadcom’s Board and its independent auditors, and took various steps to create

plausible deniability as to Broadcom’s option backdating practices.

      On January 12, 2009, the government moved ex parte for a hearing to

resolve whether the statements Ruehle made to Irell lawyers in June 2006 were

privileged communications. Ruehle argued that he had an individual attorney-

client relationship with Irell arising from the securities lawsuits, in which he was a

named defendant. Beginning on February 23, 2009, the district court held a three-

day evidentiary hearing at which Ruehle and Irell attorneys Heitz and Lefler

testified. At Ruehle’s request, a substantial portion of the testimony and evidence

was received in camera outside the presence of the federal prosecutors. Both Irell

attorneys insisted that Irell’s individual representation of Ruehle in relation to the




                                           10
civil securities lawsuits did not commence until after the June 1, 2006, interview.4

Among other things, the attorneys testified that they began the June 2006 meeting

with a so-called Upjohn or corporate Miranda warning, which included notice that

the Irell attorneys were acting as representatives of Broadcom—specifically, the

Audit Committee—and that the privilege therefore rested only with the company.

Ruehle, however, denied any recollection of receiving such cautionary warnings at

the June 1, 2006, interview. Ruehle testified that at the time he spoke with Heitz

and Lefler he believed Irell represented everyone named in the civil suits,

including him, and that Heitz and Lefler were acting at least in part as his personal

attorneys during the interview.

      At the conclusion of the hearing, the district court rendered its oral ruling

which strongly condemned the Irell attorneys’ behavior with respect to the firm’s

handling of the Equity Review. The court then found that Ruehle “had a

reasonable belief that Irell and Manella were his lawyers prior to the June 1, 2006

interrogation by Irell, and that he never gave informed written consent, either to the

dual representation by Irell or the disclosure of privileged information to third



      4
       On June 8, 2006, Irell filed a Status Conference Report on behalf of all
defendants in the Jin class action and shortly thereafter accepted service of the
amended complaint in order to avoid the need for service of legal process on each
person named therein, including Ruehle.

                                          11
parties, including Ernst & Young and the government.” Based on this reasoning,

the court ordered suppression. The district court subsequently issued a written

order, which included an additional finding that Ruehle intended his statements to

Heitz and Lefler to be confidential. The order stated that “all evidence reflecting

Mr. Ruehle’s statements to Irell regarding the stock option granting practices at

Broadcom is suppressed.”5 The court also referred Irell to the California State Bar

for possible discipline in light of numerous perceived violations of state rules of

professional conduct.

      The government interlocutorily appealed the district court’s suppression

order and we consider it on an expedited basis.6


      5
        The order also directed the government to return all privileged documents
within 14 days. That order is stayed pending the outcome of this appeal.
      6
         The district court and the parties label this a matter of “suppression.” We
will do so as well for the sake of consistency. However, analytically, the court’s
order is more accurately characterized as an order directing the exclusion of
privileged evidence—akin to the grant of a motion in limine. Though courts in the
past have used terms such as “suppress” and “exclude” interchangeably in similar
contexts, see, e.g., United States v. Plache, 913 F.2d 1375, 1377, 1379–81 (9th Cir.
1990), “suppress” is better confined to a narrower meaning that would not apply
here. “The attorney-client privilege is an evidentiary rule designed to prevent the
forced disclosure in a judicial proceeding of certain confidential communications
between a client and a lawyer.” United States v. Rogers, 751 F.2d 1074, 1077 (9th
Cir. 1985). In contrast, “suppression” is generally understood to concern
invocation of the judicially created exclusionary rule, which is intended to operate
as a deterrent to governmental misconduct and, as a necessary corollary, may be
                                                                           (continued...)

                                           12
                                          II

      The district court’s conclusion that statements are protected by an individual

attorney-client privilege is “a mixed question of law and fact which this court

reviews independently and without deference to the district court.” United States

v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (quoting United States v. Gray, 876

F.2d 1411, 1415 (9th Cir. 1989)). That is, whether the party has met the

requirements to establish the existence of the attorney-client privilege is reviewed

de novo. Id. We also review de novo the district court’s rulings on the scope of

the attorney-client privilege. Id. Factual findings are reviewed for clear error. See

Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007). A

district court’s credibility determinations are given “special deference.” United

States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008) (citing United States v.

Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998)).

                                         III




      6
         (...continued)
invoked to exclude other evidence discovered as the “fruit of the poisonous tree.”
See Herring v. United States, 129 S. Ct. 695, 700 (2009). There is no allegation of
government misconduct in the instant case as the record reveals there was no
governmental participation in the acts of Broadcom, the Audit Committee, or
Irell’s conduct of the Equity Review. Thus, the exclusionary rule does not apply
here and “suppression” in that sense is not at issue.

                                          13
      The government raises several arguments challenging the district court’s

order excluding Ruehle’s statements to Irell attorneys. We begin with some basic

premises. First, there is no dispute that Broadcom had an existing attorney-client

relationship with Irell and, by electing to reveal the information gathered to Ernst

& Young (and later to various agencies of the United States), deliberately waived

any corporate attorney-client privilege it held with respect to all matters at issue.

Second, the Equity Review and the civil securities suits, to which Ruehle was a

party, both concerned the same general subject matter as of June 1, 2006—i.e., the

stock option granting practices of Broadcom. Finally, the district court concluded

as a fact that Ruehle reasonably believed that Irell represented him individually

with respect to the ongoing civil lawsuits when the June 1, 2006, meeting took

place. Because this factual finding is not clearly erroneous, we approach the

parties’ arguments from the perspective that Irell had attorney-client relationships

with both Broadcom and Ruehle individually.

      We, however, must inquire further. After all, “[a] party asserting the

attorney-client privilege has the burden of establishing the relationship and the

privileged nature of the communication.” Bauer, 132 F.3d at 507 (citing Ralls v.

United States, 52 F.3d 223, 225 (9th Cir. 1995)) (emphasis added); accord In re

Grand Jury Subpoenas, 144 F.3d 653, 659 (10th Cir. 1998) (“In certain


                                           14
circumstances, reasonable belief may be enough to create an attorney-client

relationship, but it is not sufficient here to create a personal attorney-client

privilege.”). We must determine whether Ruehle’s communications to the Irell

attorneys regarding Broadcom’s stock option granting practices are protected by a

personal attorney-client privilege belonging to Ruehle.

       “The attorney-client privilege protects confidential disclosures made by a

client to an attorney in order to obtain legal advice, . . . as well as an attorney’s

advice in response to such disclosures.” Bauer, 132 F.3d at 507 (quoting United

States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)) (emphasis omitted). “The fact

that a person is a lawyer does not make all communications with that person

privileged.” United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (citing

Chen, 99 F.3d at 1501). “Because it impedes full and free discovery of the truth,

the attorney-client privilege is strictly construed.” Id. (quoting Weil v.

Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); accord

United States v. Plache, 913 F.2d 1375, 1379 (9th Cir. 1990). “[T]he privilege

stands in derogation of the public’s ‘right to every man’s evidence’ and as ‘an

obstacle to the investigation of the truth,’ [and] thus, . . . ‘[i]t ought to be strictly

confined within the narrowest possible limits consistent with the logic of its

principle.’” In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973) (citations omitted).


                                             15
Typically, an eight-part test determines whether information is covered by the

attorney-client privilege:

      (1) Where legal advice of any kind is sought (2) from a professional
      legal adviser 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 adviser, (8) unless the protection be waived.

In re Grand Jury Investigation, 974 F.2d 1068, 1071 n.2 (9th Cir. 1992) (quoting

United States v. Margolis (In re Fischel), 557 F.2d 209, 211 (9th Cir. 1977)).7 The


      7
          The government urges that the special problems presented by joint
representation of a corporation and its individual officers counsel adoption of
particularized requirements before the individual officer could assert an attorney-
client privilege. The Third Circuit in In re Bevill, Bresler & Schulman Asset
Mgmt. Corp., 805 F.2d 120, 123–24 (3d Cir. 1986), adopted a five-factor test
intended to clarify that “any privilege that exists as to a corporate officer’s role and
functions within a corporation belongs to the corporation, not the officer.” Several
other circuits have adopted some form of tailored test for joint-representation
scenarios. See Ross v. City of Memphis, 423 F.3d 596, 605 (6th Cir. 2005); In re
Grand Jury Subpoena (Newparent), 274 F.3d 563, 571–72 (1st Cir. 2001); In re
Grand Jury Subpoenas, 144 F.3d 653, 659 (10th Cir. 1998); United States v. Int’l
Bhd. of Teamsters, 119 F.3d 210, 215–16 (2d Cir. 1997). We do not decide the
propriety of adopting the specialized test of Bevill because, given Irell’s
longstanding representation of Ruehle as an individual before the instant case arose
and in light of the planned disclosure of facts gained in the Equity Review to the
third-party independent auditor, this case can be resolved using our usual eight-part
test. Accordingly, we leave for another day consideration of the extraordinary
requirements of the Bevill five-prong test for establishing attorney-client privilege
in a situation where both the executive and the corporation assert that they are
dually represented. Similarly, we need not reach and decide in this case whether
our circuit should adopt the rule of Newparent: that the corporation, without
consent of an executive asserting privilege, can waive the attorney-client privilege
                                                                           (continued...)

                                           16
party asserting the privilege bears the burden of proving each essential element.

United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000).

                                          A

      At the outset we note a fundamental flaw in the district court’s analysis.

“Issues concerning application of the attorney-client privilege in the adjudication

of federal law are governed by federal common law.” Bauer, 132 F.3d at 510 n.4

(quoting Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992));

see also United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995) (“[S]ince

the adoption of the Federal Rules of Evidence, courts have uniformly held that

federal common law of privilege, not state law applies.” (citations omitted)). The

district court, however, applied a “reasonable belief” standard without ever

referencing the well-established eight-part test. Rather, in reaching its holding, the

court relied almost exclusively upon California state law to define both the

attorney-client relationship and the attorney-client privilege. Most significantly,

the court cited California Evidence Code section 917(a) for the proposition that all



      7
       (...continued)
in a dual-representation context where the subject matter of the waiver concerns
matters of interest to the corporation. 274 F.3d at 572–74. We also need not reach
Newparent’s further holding that the executive can control the assertion of
attorney-client privilege only as to matters segregable from those of concern to the
corporation. Id. at 573.

                                          17
“communications made in the course of an attorney-client relationship are

presumed confidential.”8

      This legal error is critical in this case. The district court applied a liberal

view of the privilege that conflicts with the strict view applied under federal

common law, which governs here. See Martin, 278 F.3d at 999. By approaching

the exclusion question with a presumption that the privilege attached, the district

court inverted the burden of proof, improperly placing the onus on the government

to show what information was not privileged. See Gordon v. Superior Court of

L.A. County, 65 Cal. Rptr. 2d 53, 59 (Cal. Ct. App. 1997) (“[C]ommunications

between a lawyer and his client are presumed confidential, with the burden on the

party seeking disclosure to show otherwise.” (citations omitted)).

      As the party asserting the privilege, Ruehle was obliged by federal law to

establish the privileged nature of the communications and, if necessary, to


      8
         Ruehle insists that federal privilege law also creates a prima facie
presumption of privilege, citing Chen, 99 F.3d 1495. He misreads that opinion. At
issue in Chen was whether the defendants’ attorneys were acting in the capacity of
professional legal advisors—that is, whether the attorneys were providing legal
advice, which is privileged, or non-legal business advice, which is not protected.
Id. at 1500–01 (noting that “[i]f a person hires a lawyer for advice, there is a
rebuttable presumption that the lawyer is hired ‘as such’ to give ‘legal advice’”).
Ruehle extrapolates from the unremarkable and narrow principle in Chen to argue
that “[w]here an attorney-client relationship exists, communications made in the
context of that relationship are prima facie subject to the privilege.” This argument
directly conflicts with our case law.

                                           18
segregate the privileged information from the non-privileged information. See

Bauer, 132 F.3d at 507; see also 3 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence, § 503.20[4][b] (Joseph M. McLaughlin, ed.,

Matthew Bender 2d ed. 2009) (discussing rule that blanket claims of privilege are

generally disfavored). With respect to the latter obligation, Ruehle has made no

effort to identify with particularity which of his communications to the Irell

attorneys are within his claim of privilege, in either his public or sealed filings

before us. Under federal law, the attorney-client privilege is strictly construed.

Ruehle’s failure to define the scope of his claim of privilege weighs in favor of

disclosure; in any event, his claim cannot support the overly broad, blanket

suppression order entered here.

                                           B

      With the burden properly on Ruehle, and after carefully reviewing and

evaluating the record, we hold that Ruehle fails the fourth element of the traditional

eight-part privilege test. Ruehle’s statements to the Irell attorneys were not “made

in confidence” but rather for the purpose of disclosure to the outside auditors. That

he might regret those statements after later learning of the subsequent corporate

disclosure to law enforcement officials is not material to the privilege

determination as of June 2006.


                                           19
      The district court reached the contrary conclusion: “Mr. Ruehle intended his

statements to be confidential, and he had no reason to suspect that his

conversations with the Irell lawyers would be disclosed to third parties.” We are

unable to square this factual finding, which forms the linchpin of the suppression

order, with the evidence presented at the evidentiary hearing. The notion that

Ruehle spoke with Irell attorneys Heitz and Lefler with the reasonable belief that

his statements were confidential is unsupported by the record. Of particular

significance is what was said in the meetings he attended prior to June 1, 2006,

with Irell attorneys, company management, and the Audit Committee, as

acknowledged in Ruehle’s own testimony. He frankly admitted that he understood

the fruits of Irell’s searching inquiries would be disclosed to Ernst & Young in

order to convince the independent auditors of the integrity of Broadcom’s financial

statements to the public, or to take appropriate accounting measures to rectify any

misleading reports. We reject the district court’s contrary finding that an

expectation of confidentiality was established because, upon review of the record,

we are left with the “definite and firm conviction that a mistake has been

committed” and thus we determine that this factual finding was clearly erroneous.

United States v. Overton, 573 F.3d 679, 688 (9th Cir. 2009) (quoting Easley v.

Cromartie, 532 U.S. 234, 242 (2001)).


                                          20
      Ruehle was no ordinary Broadcom employee. He served as the public

company’s CFO—the senior corporate executive charged with primary

responsibility for Broadcom’s financial affairs. This was a sophisticated corporate

enterprise with billions of dollars in sales worldwide, aided by accountants,

lawyers, and advisors entrusted with meeting a multitude of regulatory obligations.

The duties undertaken by Ruehle broadly encompassed not only accurately and

completely reporting the company’s historical and current stock option granting

practices, but also Broadcom’s strict compliance with reporting and record keeping

requirements imposed through the Securities Exchange Act of 1934 and the

Sarbanes-Oxley Act of 2002, among many other federal and state rules and

regulations. See, e.g., 15 U.S.C. §§ 7241, 7262(a). As the head of finance, Ruehle

cannot now credibly claim ignorance of the general disclosure requirements

imposed on a publicly traded company with respect to its outside auditors or the

need to truthfully report corporate information to the SEC.

      Ruehle was also intimately involved in all aspects of the Equity Review,

including the planning, investigatory, and disclosure stages. Ruehle was a full

participant in the initial May 2006 meetings with the Irell attorneys where the

scope of representation and the details of the Equity Review were decided and

agreed upon, even before convening the formal Audit Committee meeting. From


                                         21
the outset, it was settled and made widely known to senior management that

Broadcom intended to fully cooperate with the SEC and the auditors. Ruehle, as

the primary contact with Ernst & Young over the years, personally introduced the

Irell attorneys to the team of outside auditors. Thereafter, he repeatedly met with

the Audit Committee, senior management, the Irell attorneys, and the auditors, and

remained fully apprised throughout the summer of 2006 of the status of Irell’s

investigation and the flow of information.

      In his testimony at the evidentiary hearing, Ruehle acknowledged the broad

nature of the planned third-party disclosure, noting that Irell was directed, to his

knowledge, to freely share “all factual information” gleaned through the Equity

Review—whether “good, bad, or ugly.” As he explained, at the time of the June 1,

2006, interview, he understood that nothing would be withheld from Ernst &

Young:

      Q:       Did you think it was appropriate for Broadcom, represented by
      Irell . . . , to withhold information from the auditors in connection with
      their work in early June of 2006?

      A:     We were not withholding information from the auditors.

      Q.    They were not withholding information from the auditors; is that
      correct?

      A:     That’s correct.



                                        22
      Q:     And you understood that to be the case at the time; correct?

      A:     That’s correct.

Indeed, Ruehle confirmed over and over again his awareness that the substance of

his June 2006 interviews with the Irell lawyers was not to be held in confidence:

      Q:    You understood that Irell was going to be sharing the factual
      information they gathered to third parties?

      A:     That’s correct.

      Q:     And fair to say you understood that Irell was there, among other
      things, to gather facts; correct?

      A:     Correct.

To dispel any doubt, Ruehle also confirmed that the information he provided to

Heitz and Lefler was largely factual in nature—the type of information he

understood would be disclosed to third parties.

      Q:    To be clear, the information you provided to Irell was factual
      information; correct?

      A:   It was a combination of factual information and some
      assumptions and some recollections.

                                ***

      Q:     And you understood that Ernst & Young was going to be looking
      to you, among other people, to help them understand what had happened
      as part of Broadcom’s historical options review; correct?

      A:     That’s correct.


                                       23
      As Ruehle anticipated when he met with the Irell attorneys in June 2006, the

information obtained through the Equity Review, including his input, was passed

on to Ernst & Young. He never raised any anxiety about the possible disclosure

over what he now claims was intended to be confidential and thus privileged

information. Ruehle had ample opportunity to raise any concern he might have

harbored. Ruehle not only attended meetings where the Audit Committee directed

Irell to disclose to Ernst & Young the fruits of the Equity Review, he was also

present at meetings where disclosures to the auditors actually occurred. He did not

object. Even after engaging independent counsel to apprise him of his legal rights,

Ruehle never claimed that he thought his statements to Irell during the Equity

Review, later shared with the auditors, were confidential—until the specter of

criminal liability arose in 2008.

      On appeal, Ruehle tries to minimize the damning evidence confirming his

awareness that his interactions with Irell would not be held in confidence. He

places much weight on the assertion that he only learned of the details of Irell’s

disclosures to Ernst & Young and the government in 2008 and that he was

“shocked.” Ruehle contends that, notwithstanding his obligation to fully cooperate

in Broadcom’s internal review, he would not have provided information as part of

the Equity Review had he known it could be used in support of a criminal


                                          24
investigation or an SEC enforcement action. The district court seems to have

agreed with Ruehle’s analysis, noting:

      The Government argues that Mr. Ruehle knew that Irell would make
      some disclosure to Ernst & Young in connection with its investigation,
      and therefore Mr. Ruehle knew that his statements were not
      confidential. This argument is unpersuasive. Mr. Ruehle never
      understood that Irell might disclose statements adverse to Mr. Ruehle’s
      interests to the Government for use in a criminal case against him.

This analysis misses the mark. The salient point from a privilege perspective is

that Ruehle readily admits his understanding that all factual information would be

communicated to third parties, which undermines his claim of confidentiality to

support invoking the privilege. Ruehle’s subjective shock and surprise about the

subsequent usage of the information he knew would be disclosed to third-party

auditors—e.g., information subsequently shared with securities regulators and the

Justice Department now used to support a criminal investigation and his

prosecution—is frankly of no consequence here.

      In support of his case for invocation of the privilege, Ruehle also repeatedly

points to attorney Heitz’s testimony that he could not “split his mind” so as to

distinguish between facts relevant to the Equity Review and those relevant to the

defense of Ruehle in the pending civil securities litigation, because they both had at

their core Broadcom’s stock option granting practices. But his efforts to make



                                          25
gold from lead are met with failure. The implicit concession on Ruehle’s

part—that the information underlying the Equity Review and the lawsuits was

largely inseparable, if not one and the same—is detrimental, not helpful, to his

case. His admitted awareness that anything relating to the former would not be

held in confidence but rather shared with at least one third party destroys the

confidentiality essential to establishing the privilege as to both.

      Ruehle attempts to raise an exception to the full disclosure of all factual

information, insisting that he anticipated the disclosure of only factual information

“that was not otherwise privileged information.” In other words, Ruehle now

asserts an expectation of confidentiality only over statements that he claims were

really given in confidence. He does not distinguish what those statements might be

in his blanket invocation of the privilege. This circular reasoning is, analytically

speaking, unpersuasive and cannot overcome the concrete evidence in the record

before us. Even supposing he subjectively believed that some of the information

he conveyed to the Irell lawyers was confidential, upon asserting the attorney-

client privilege Ruehle was obliged to distinguish which particular statements

should be afforded the privilege. He made no effort to do so before the district

court and fares no better on appeal. His testimony at the evidentiary hearing,

despite being held in camera at his request, due ostensibly to the sensitive subject


                                           26
matter to be discussed, did not delve into the details of his substantive

contributions to the Equity Review and, frankly, entailed largely non-privileged

matters. We are left guessing as to what particular facts Ruehle purportedly

believed were disclosed in breach of confidence.

      Ruehle’s position is, at bottom, that some nebulous portion of his

communications with Heitz and Lefler was intended to be confidential as to him

personally and therefore everything said or not said to the attorneys should be

protected by his individual attorney-client privilege. That is not the law nor, in our

view, should it be. Having failed to better articulate his expectations regarding the

scope of disclosure to Ernst & Young, he has failed to carry his burden with

respect to any and all factual information arising from the Equity Review.

      Moreover, Ruehle’s argument runs squarely into the settled rule that any

voluntary disclosure of information to a third party waives the attorney-client

privilege, regardless of whether such disclosure later turns out to be harmful. See

3 Weinstein & Berger, supra, § 503.40. Ruehle freely and voluntarily disclosed

the information in June 2006 and did not mention an individualized privilege until

nearly two years later, after having sat in on the very meetings where his allegedly-

privileged information was disclosed. Ruehle’s assertion about his subjective

intent in 2006 cannot sustain his privilege claim when he has freely admitted that


                                          27
the disclosure to Ernest & Young was planned. See Weil, 647 F.2d at 24 (holding

subjective intent not dispositive and privilege waived).

      In sum, the overwhelming evidence demonstrates that Ruehle’s statements

to Heitz and Lefler were not “made in confidence” but rather for the purpose of

outside disclosure. Accordingly, we hold that Ruehle has failed to meet his burden

of establishing the existence of an individual attorney-client privilege with respect

to the information provided to the Irell attorneys in the June 2006 time frame.

                                          IV

      A considerable portion of the district court’s suppression order was

dedicated to recounting perceived violations of the California Rules of Professional

Conduct committed by Irell attorneys. This portion of the order, which relates to

possible disciplinary action by the state bar, is not before us on appeal. Ruehle,

however, asserts that clear breaches of professional duties warrant suppression in a

criminal prosecution. We disagree and reject this novel argument, which stands

apart from the attorney-client privilege determination.9

      “[A] state rule of professional conduct cannot provide an adequate basis for



      9
        At the evidentiary hearing, Ruehle’s counsel acknowledged that
suppression was not a remedy for a breach of counsel’s duty of loyalty. Ruehle
reversed course and argued otherwise in his briefs on appeal. He appears to have
abandoned the position at oral argument.

                                          28
a federal court to suppress evidence that is otherwise admissible.” United States v.

Lowery, 166 F.3d 1119, 1124 (11th Cir. 1999); accord United States v. Keen, 508

F.2d 986, 989 (9th Cir. 1974) (“[E]vidence obtained in violation of neither the

Constitution nor federal law is admissible in federal courts, even though obtained

in violation of state law.” (citations omitted)). To be clear, in some cases, material

protected by the attorney-client privilege may come to light as a result of counsel’s

breach of a duty of confidentiality. But it is the protected nature of the information

that is material, not the ethical violation by counsel. See Int’l Bhd. of Teamsters,

119 F.3d at 217 (holding that an individual could not assert individual privilege

even though the law firm failed to clarify that it represented only his employer, in

violation of state rules of professional responsibility).

      Contrary to Ruehle’s contention, United States v. Rogers, 751 F.2d 1074

(9th Cir. 1985), provides him no support. As the government correctly

distinguishes it, Rogers involved government misconduct in acquiring evidence.

Id. at 1079 (holding that a federal agent’s “inducement of a violation of an ethical

obligation of confidentiality . . . does not warrant dismissal of an indictment”

where suppression is a possible remedy with respect to the improperly obtained

evidence). Read properly, that case supports the government’s position that the

suppression order was in error. Id. at 1077 (“The attorney-client privilege is an


                                           29
evidentiary rule designed to prevent the forced disclosure in a judicial proceeding

of certain confidential communications between a client and a lawyer.”). There

has been no allegation that the government encouraged, was complicit in, or was

even aware of, any breach of ethical obligations on Irell’s part. It learned of the

information only after Broadcom made an intentional disclosure to the government

in response to regulatory inquiries as evidence of the company’s good faith efforts

to comply with its financial reporting obligations. Irell’s allegedly unprofessional

conduct in counseling Broadcom to disclose, without obtaining written consent

from Ruehle, while troubling, provides no independent basis for suppression of

statements he made in June 2006.

                                          V

      The district court erred in forbidding the United States from calling Irell

attorneys to testify to the information they learned from Ruehle in June 2006.

Consistent with his admitted understanding that Broadcom would fully disclose

what Irell learned as part of the Equity Review to Ernst & Young, Ruehle lacks an

expectation of confidentiality to support a blanket invocation of his individual

attorney-client privilege over all factual information he provided.10


      10
        We stress that our holding today should not be interpreted as carte blanche
approval of all foreseeable testimony by the Irell attorneys as we read the proffer
                                                                         (continued...)

                                          30
      The district court’s order suppressing the Irell evidence is reversed and the

matter is remanded for trial.

      REVERSED and REMANDED.




      10
       (...continued)
summarized in the FBI Form FD-302 reports. The district court remains
responsible for determining the admissibility of any testimony that may extend
beyond factual information, and, to the extent consistent with our opinion,
appropriate evidentiary objections, of course, remain viable.

                                         31
                                  COUNSEL

Daniel B. Levin (argued), Gregory W. Staples, Andrew D. Stopler, United States
Attorney’s Office, Los Angeles, California; Robb C. Adkins, United States
Attorney’s Office, Santa Ana, California; Thomas P. O’Brien, United States
Attorney, for Plaintiff-Appellant United States of America.

Matthew D. Umhofer (argued), Richard Marmaro, Matthew E. Sloan, Skadden,
Arps, Slate, Meagher & Flom LLP, Los Angeles, California, for Defendant-
Appellee William J. Ruehle.




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