In the Matter of Robert L. Thorp, Esq., Witness-Appellant. United States of America v. Robert L. Thorp, Witness-Appellant

Appellant Thorp, an attorney, was found guilty of criminal contempt for his refusal to answer a question during a criminal trial. We reverse.

This controversy stems from a prior related case, United States v. Flores, 628 F.2d 521 (9th Cir. 1980), which we will only briefly review here. In Flores , the district court adjudged appellant Thorp in civil contempt as a recalcitrant witness under 28 U.S.C. § 1826 for his refusal to answer certain questions during a pretrial hearing. We affirmed that order as we determined that the claimed attorney-client privilege was not applicable under the facts of the case. Id. at 526 .

The Flores case was submitted to this court on July 21, 1980, and decided on August 12,1980. A petition for rehearing was filed on August 22, 1980. Our opinion was modified on October 9, 1980, and the petition for rehearing and rehearing en banc was denied on the same date. The mandate was issued on October 17, 1980.

In the meantime, however, on August 25, 1980, the Flores trial was recommenced, and on August 28, 1980, Thorp was once again called upon to testify. Thorp declined to answer the same question which had been asked in the earlier pretrial hearing and…