MARC P. OSSINSKY ATTORNEY AT LAW WRITING SAMPLE 1

TABLE OF CONTENTS

TABLE OF CONTENTS -i-

JURISDICTION OF THE COURT 1

STATEMENT OF THE FACTS 1

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT 4

I. ANY ALLEGED "CONFIDENTIAL COMMUNICATIONS" WHICH WERE LEFT IN THE RECORDS OF REAL INCOME LOST THEIR CONFIDENTIAL STATUS WHEN THEY WERE GIVEN TO THE TRUSTEE. POSSESSION BY THE TRUSTEE IS INCONSISTENT WITH, AND A WAIVER OF ANY ATTORNEY/CLIENT PRIVILEGE AS TO SUCH COMMUNICATION. 6

II. THE COMMUNICATIONS AT ISSUE ARE NOT PRIVILEGED BECAUSE THE PETITIONERS HAVE FAILED TO PROVE THE CONTENTS OF THE COMMUNICATIONS, AND COMMUNICATIONS WHICH ARE IN FURTHERANCE OF A SCHEME TO DEFRAUD OR MAKE A FALSE CLAIM IN VIOLATION OF LAW ARE NOT PROTECTED BY THE PRIVILEGE. 14

III. PETITIONERS’ LEGAL AUTHORITY FOR DISQUALIFICATION IS MISREPRESENTED AND INAPPLICABLE. 15

IV. SINCE THE "COMMUNICATIONS" WERE NOT CONFIDENTIAL, RESPONDENT’S COUNSEL ACTED ETHICALLY AND PROPERLY. 16

CONCLUSION 19

JURISDICTION OF THE COURT

Respondent, Jalis Development, Inc., (hereinafter "Jalis" or "Respondent") has no dispute that Petitioners have followed the appropriate procedure for invoking the jurisdiction of the Court. If the Petitioners were entitled to relief, Certiorari would be the appropriate vehicle. As will be seen, the Petition is completely devoid of any merit, and the Petitioners are not entitled to any relief and therefore the Petition should be denied.

STATEMENT OF THE FACTS

The nature of the underlying cause of action involves a dispute between Jalis Development, Inc. as a partner in a joint venture with Real Income, Inc. in regard to the development and sale of some land in Osceola County, Florida (the "Property") (See Amended Complaint containing the Joint Venture Agreement, Respondent’s Appendix, Exhibit 1). The joint venture partnership was to be managed and operated by the Defendant, Real Income, Inc., (Id.) which is now in bankruptcy (See Real Income’s Notice of Bankruptcy, Respondent’s Appendix, Exhibit 2). Real Income, Inc. was controlled by Petitioner Rodgers and Defendant Bender [who was discharged as a result of his personal bankruptcy filed after this litigation commenced] (See Bender’s Notice of Bankruptcy and Suggestion of Stay, Respondent’s Appendix, Exhibit 3) .

At all times material to the underlying action, Rodgers was simultaneously president and a director of Real Income, Inc., and president and a director of Petitioner Double T Corporation. (See Amended Complaint contained in Respondent’s Appendix Exhibit 1, in particular paragraphs 49, 50, 52, 54 and 55). The Counts in the Amended Complaint directed against Petitioner Rodgers deals with his breach of fiduciary duty while having control of the funds and property of the Joint Venture, and the unlawful diversion of funds. Petitioner, Double T’s liability is limited to the $22,000.00 received from the sale of the Joint Venture property as a "loan repayment" directed by Petitioner Rodgers who was also President of Double T (Complaint paragraph 50(b), and Count II). It is undisputed that the loan had nothing to do with the Joint Venture or used for the benefit of the Property.

STATEMENT OF THE CASE

There are certain statements made in the Petitioners’ Statement of the Case that need clarification in order to accurately assess the merits of the issues facing the Court.

Real Income’s Bankruptcy Trustee decided it was in the best interest of the estate to align its and JALIS’ interest, which resulted in the Motion and Notice of Proposed Compromise dated April 4, 1996 (Respondent’s Appendix Exhibit 5). As part of the Compromise negotiated, on March 5, 1996, counsel for the respondent was appointed special counsel to the bankruptcy trustee to assist Real Income’s bankruptcy estate in recovering the property which was fraudulently transferred and to prosecute actions against former management which resulted in the loss contributing to Real Income’s bankruptcy (see Respondent’s Appendix Exhibit 6). The proposed Compromise (Respondent’s Appendix Exhibit 5) was approved by the Bankruptcy Court at the hearing held on July 23, 1996. A copy of this order will be supplied on receipt.

The only witness to testify at the hearing on the instant Motion to Disqualify on April 23, 1996 was Leigh Meininger, who is the bankruptcy trustee appointed by the bankruptcy court to administer the estate of Real Income, Inc. The agreement not to prosecute any claims in and amongst the defendants who had formerly been represented by Petitioners’ counsel was executory in nature. The undisputed facts before the trial court were that the agreement (Petitioners’ Appendix A-5) was not affirmed by the bankruptcy trustee pursuant to 11 U.S.C. §365(d)(1), and the referenced agreement is therefore void at least as to the Trustee for Real Income, Inc. (Petitioners’ Appendix pp. A14 and 15).

Petitioners also state: "Ossinsky freely admits receiving the confidential information" (Petition at p. 2). A thorough review of the citation to the transcript (A-15) clearly indicates this is a misstatement of the facts because any "privileged" or "confidential information" was waived by Real Income or the recipient(s) of the communications who left the documents in Real Income’s files. Prior to Real Income releasing the documents to Ossinsky, the trustee for Real Income executed waivers of the attorney/client privilege for Real Income on two separate occasions on December 5, 1995 and February 27, 1996. Copies of these waivers were sent to the Petitioners (See Respondent Appendix, Exhibits 7 and 8). The trustee testified that the documents provided to Respondent’s counsel were documents which he received as being property of Real Income, Inc. (Petitioners’ Appendix A-15 and 16). At the hearing on the Petitioners’ Motion to Disqualify Respondent’s counsel, the trial court informed Petitioners that the disqualification/ attorney client documents issue was a matter more appropriately addressed by the bankruptcy court. (See Petitioners’ Appendix A-11).

Petitioners have not provided the "communications" in issue to the trial court or this Court. There is therefore no evidence before this Court which demonstrates that the "communications" are "privileged" or "confidential" as alleged by the Petitioners. As a result of Petitioners filing a Motion for Contempt on May 28, 1996 (Respondent’s Appendix Exhibit 9). Respondent filed a Motion for Clarification or Modification of Order Granting Stay Pending Appeal so that this Court could see the documents and evaluate the "privilege" claim (See motion dated May 31, 1996, Respondent’s Appendix Exhibit 10). Petitioners objected and the trial court declined to modify the stay pending appeal (See Order Denying Plaintiff’s Motion for Clarification or Modification of Order Granting Stay Pending Appeal dated July 16 , 1996, Respondent’s Appendix Exhibit 11). At the hearing on Petitioners’ Motion for Contempt (Respondent’s Appendix Exhibit 9) held July 22, 1996, counsel for Respondent again raised the issue of meaning of the Order Granting Stay Pending Appeal, but the trial court declined to modify it (Transcript of Proceedings, pp. 15-16, Respondent’s Appendix Exhibit 12). Respondent has not provided the "communications" to this Court out of an abundance of caution so as to not violate the trial court’s order, but have filed a separate Motion for Leave of Court to Provide Documents and Supplement Respondent’s Appendix.

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SUMMARY OF ARGUMENT

Petitioners seek by the instant petition and Order Granting Stay Pending Appeal to prevent this Court from seeing the very documents which supposedly demonstrate their position. Petitioners failure to provide the Court with the allegedly privileged communications prevents the Court from evaluating the law Petitioners cite, as well as the law cited by Respondent, to determine the applicability of same to the issues raised in the petition and underlying action.

Petitioners argument boiled down is as follows:

1) The documents allegedly are between Mr. Duchemin and his "clients", which included Real Income, Inc.;

2) such communications are privileged and confidential regardless of content or who produced them; and

3) anyone who sees these "communications" has an "unfair" advantage which warrants disqualification.

It must be noted that throughout the instant petition, the Petitioners assert that the information was "confidential", yet Petitioners have cited no law nor demonstrated in the record that the information which was undisputedly residing in the possession of the trustee retained its "confidential status" at the time it was shared with counsel for the Respondent. Petitioners further state that the stay order prohibited disclosure of documents which were the property of the bankruptcy estate to the bankruptcy court having jurisdiction over the Real Income estate. Petitioners allege disclosures by counsel for Respondent in violation of the alleged order. This is disingenuous to the facts of the case and the trial court’s ruling as pronounced in the transcript (Petitioners’ Appendix A-11, 16-19).

Any communications which relate in part to Petitioner Rodger’s actions while simultaneously acting as an officer and director of Real Income and Double T Corporation, such as when proceeds by Real Income from the disposition of the joint venture property were diverted in derogation of Jalis’ rights in the joint venture, are not privileged. This is especially true where the documents were in the Trustee’s custody.

The Petitioners have attempted to use the corporate shell of Real Income (and its bankruptcy estate) as a means to escape or cover up their liability for fraud or breach of fiduciary duty as has been revealed in other discovery produced in this case. The present position faced by the Petitioners were created by their own actions when they decided to be jointly represented along with Real Income and then decided to have Real Income declare bankruptcy. By voluntarily surrendering documents containing the "communications" at issue into the hands of the Trustee, who was outside any obligation of confidentiality or attorney/client privilege, any such confidentiality (if it existed) was lost.

I. ANY ALLEGED "CONFIDENTIAL COMMUNICATIONS" WHICH WERE LEFT IN THE RECORDS OF REAL INCOME LOST THEIR CONFIDENTIAL STATUS WHEN THEY WERE GIVEN TO THE TRUSTEE BECAUSE POSSESSION BY THE TRUSTEE IS INCONSISTENT WITH, AND A WAIVER OF ANY ATTORNEY/CLIENT PRIVILEGE AS TO SUCH COMMUNICATION.

The instant petition is totally without merit and is based upon an assumption that attorney/client letters, regardless of circumstances, are always confidential communications which, even if voluntarily given by the opposing party, would constitute an unfair advantage and therefore merit disqualification. However, the law cited by the Petitioners wholly fails to support that proposition or the presumption which the Petitioners make, to-wit: that said communications retain any confidential status in the hands of third parties who are not part of a confidential group.

The undisputed facts in the record indicate that the documents at issue were in the possession of the bankruptcy Trustee (Petitioners’ Appendix A-15 and A-16), and the Petitioners have cited no law which required the bankruptcy trustee to maintain any "confidentiality" of these documents which were placed in his custody. All of the property of Real Income, including the documents in question, became property of the bankruptcy estate pursuant to 11 U.S.C. §541. There is no testimony or evidence in the record to show that the Trustee agreed to treat any of the documents as confidential. The testimony indicates the Trustee’s actions in disclosure were direct and intentional, not inadvertent. There is no evidence which would support the application of the cases suggested by Petitioners that such disclosure was "inadvertent" as defined in Adelman v. Adelman, 561 So. 2d 671 (Fla. 3rd DCA 1990) and General Accident Insurance Company v. Borg-Warner Acceptance Corporation, 483 So. 2d 505 (Fla. 4th DCA 1986).

In fact, the bankruptcy trustee’s duty conflicts with the Petitioners position. Illuminating on this subject is the case Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 105 S.Ct. 1986 (1985). This case was cited to the trial court and is the seminal case on the issue of attorney/client privilege waiver of a corporation vis-a-vis the rights of the trustee. The Supreme Court held in Weintraub that the trustee had a duty to "maximize the value of the estate ... he is directed to investigate the debtor’s financial affairs, ... and is empowered to sue officers, directors, and other insiders to recover, on behalf of the estate, fraudulent or preferential transfers of property, ..." Id. at 1993. In Weintraub, former management was attempting to bar the waiver of the privilege by the bankruptcy trustee to protect themselves from the revelation of communications between the former managers and counsel for the corporation which might reveal mismanagement or defalcations as to the former management’s duties to the shareholders and the corporation. The Court held:

In seeking to maximize the value of the estate, the trustee must investigate the conduct of prior management to uncover and assert causes of action against the debtors, officers and directors. (citations omitted) It would often be extremely difficult to conduct this inquiry if the former management were allowed to control the corporation’s attorney-client privilege and therefore to control access to the corporation’s legal files. To the extent that management had wrongfully diverted or appropriated corporate assets, it could use the privilege as a shield against the trustee’s efforts to identify those assets. The Code’s goal of uncovering insider fraud would be substantially defeated if debtor’s directors were to retain the one management power that might effectively thwart an investigation into their own conduct.

Id. at 1993 and 1994 (emphasis added).

One of Weintraub’s progeny was In Re: O.P.M. Leasing Services, Inc., 670 F.2d 383 (2d Cir. 1982), wherein the court affirmed the order directing the corporation’s counsel to disclose communications with prior management. The court in O.P.M. agreed with the trial court, which found the trustee had control over the attorney/client privilege:

... the assertion or the waiver of the privilege is a matter of the trustee’s "sole judgment" and is not subject to veto by third parties who may have conveyed information to corporate counsel prior to the filing of the petition, and who may possibly be affected by the decision of the trustee to waive the privilege.

Id. at 386. See also, Citibank, N.A. v. Andros, 666 F.2d 1192 (8th Cir. 1981).

The Petitioners’ protestations not withstanding, they were not entitled to prevent the trustee from doing that which the trustee saw fit in accordance with his duties imposed by the Bankruptcy Code and the law. Accord In Re: Huff, 109 B.R. 506 (S.D. Fla. 1989) where the trustee had the right and obligation to pursue former management for fraud or breach of fiduciary duty which caused a loss or the creation of more debt and further insolvency of the corporation, for the benefit of the shareholders and the creditors.

In Gekas v. Pipin, 69 B.R. 671 (N.D. Ill. 1987), the court held that under the doctrine announced in Weintraub, supra., the trustee had the ability to waive the attorney/client privilege of former management even with the bankruptcy counsel for the corporate debtor. In so doing, Gekas relied upon the Bankruptcy Codes’ purpose of uncovering insider fraud and supported the ability of the trustee to waive the privilege so hidden assets could be recovered for the benefit of creditors and shareholders. Id. at 673 and 674. The court held that a contrary rule would conflict with the Bankruptcy Code’s policy of uncovering insider fraud.

In St. Paul Fire and Marine Insurance Company v. Welsh, 501 So. 2d 54 (Fla. 4th DCA 1987), St. Paul objected and appealed the fact that it did not receive a fair trial by admission into evidence what it claimed to be prejudicial attorney/client letters which had been produced to opposing counsel. When the insurance company’s claim file was first requested, St. Paul’s sole objection was relevancy. The motion for protective order was denied and the attorney/client privilege and work product matters were not raised. The court held: "Since St. Paul did not assert this privilege before producing the letters, once St. Paul produced the letters, the privileges were waived." Id. at 57 (emphasis added).

Likewise, a waiver was found in the case of Stevenson v. Stevenson, 661 So. 2d 367 (Fla. 4th DCA 1995) where the fact of execution by one party to some documents comprising part of a divorce settlement was communicated by the wife’s attorney’s secretary to opposing counsel. The Stevenson court held that any attorney/client privilege which could have attached to the secretary’s knowledge of the execution of the agreements was "...[w]aived when she conveyed this information to the secretary of Robert’s attorney". Id. at 369 and 370. The court went on to cite the decision in Hamilton v. Hamilton Steel Corp., 409 So. 2d 1111 (Fla. 4th DCA 1982) and affirming the proposition that "once the privilege is waived, and the horse out of the barn, it cannot be reinvoked." Id. at 1114 (emphasis added). The Stevenson court thus concluded that the communication was not confidential so as to be excludable under the attorney/client privilege.

Two cases also instructive from other jurisdictions are the cases of International Digital Systems v. Digital Equipment Corp., 120 F.R.D. 445 (D. Mass 1988) and In Re: Diasonics Securities Litigation, 110 F.R.D. 570 (D. Colorado 1986). In International Digital, as a result of a voluminous document production, opposing counsel received 88 pages of privileged or confidential material. In that case, the court found there was no dispute that the disclosure was "inadvertent" in the sense that there was no intentional or purposeful disclosure by the disclosing party (in contrast to the case at bar). The International Digital court reviewed the various federal authorities and noted that a "middle ground approach" was that waiver was determined by looking at the party producing the documents and whether the party took precautions to protect the privilege.

This doctrine seems to have originated in cases in which it was claimed that the privilege was waived when the party or attorney placed the documents in a place where third parties could view them.

Id. at 449.

The International Digital court in following other authority ruled:

When confidentiality is lost through "inadvertent" disclosure, the Court should not look at the intention of the disclosing party. ... unforced disclosure is disclosure and should support the waiver argument.

Id. at 449 and 450. In citing to In Re: Standard Financial Management Corp., 77 B.R. 324 (D. Mass. 1987), the court quoted with approval from Standard Financial:

[M]istake or inadvertence is, after all, merely a euphemism for negligence, and, certainly ... one is expected to pay a price for one’s negligence.

International Digital at 450.

The court concluded and ruled that the disclosure of the documents during the course of pretrial discovery was a waiver of the attorney/client privilege. Id.

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The Diasonics case is also a good example of the deficiencies and conclusory nature of the instant petition. In Diasonics, one of the parties sought disclosure of communications and documents in possession of an attorney consulted by former counsel to the corporations involved in that case. The Diasonics opinion reviewed the historical basis of the privilege and sets forth many of the clear principles which define the attorney/client privilege doctrine:

(1) the privilege must be strictly construed;

(2) the party seeking to assert attorney/client privilege has the burden of proving the applicability of the privilege;

(3) the party must show that the privilege clearly applies to the documents in dispute by specifically setting forth the objections; and

(4) general allegations are insufficient to meet this burden of proof

Id. at 572 and 573.

The Diasonics court went on to note the potential actual conflict between the former management, who had a fiduciary duty to the corporations versus the management’s own personal interest in acting for their personal benefit, while being an officer and director. The court cited with approval the case of Bailey v. Meisterbrau, Inc., 55 F.R.D. 211 (N.D. Ill. 1972) in quoting the following language from that case:

A fiduciary cannot turn his responsibilities on and off like a faucet; Cappaducia was under a continuing obligation to plaintiff as a shareholder ... as long as that duty existed, so did the concomitant interest of the Black Company shareholders in knowing his legal communications concerning the future of their company.

Bailey, at 214.

The Diasonics court cited Weintraub, supra, acknowledging that management of the corporation must exercise the attorney/client privilege in a manner consistent with their fiduciary responsibilities and not to further their own personal interest. The Diasonics court held that the communications which were being sought for disclosure were not confidential and privileged because the communications by management with this particular counsel occurred at the same time they had a conflict with their duties to their fiduciary employer. As such, the court declined to find the communications privileged because of their responsibility to the shareholders of the corporation. The Diasonics court also recognized the longstanding rule that the privilege does not apply (or the privilege may not be used) to shield a disclosure of a communication which demonstrates the planning or execution of a fraud or ordinary tort. Id. at 575. The Diasonics court held that since the disclosures in issue were to counsel not within the confidential circle protected by the privilege, such constituted a waiver because

Disclosure of information obtained by a person not entitled to the confidential information is inconsistent with the privilege relationship and waives the privilege.

Id. (emphasis added).

Accord In re: Standard Financial Management Corp., 77 B.R. 324 (D. Mass. 1987), where objections were raised to two attorney/client letters which were apparently inadvertently copied in the course of a document production. Special counsel to the trustee attempted to make use of these documents and former management objected on several grounds including attorney/client privilege. The court acknowledged the longstanding rule that the privilege is to be strictly construed in accordance with its objective and noted:

... the waiver of corporate privilege could be made meaningless since, of course, a corporation can only act through individuals who could then, even as an afterthought once trouble developed, claim that the individual attorney/client privilege should prevail.

Id. at 328.

The Standard Financial court went on to follow earlier precedent in holding that for an individual to claim a personal attorney/client privilege as opposed to a corporate attorney/client privilege, it must be demonstrated that

...when corporate officers approach corporate counsel for personal legal advice, it must be explicitly made clear to counsel that the advice is sought individually rather than in a corporate capacity. Corporate counsel must be willing to proceed in the face of what may be a serious conflict of interest. The individual must intend and counsel must be willing, despite the conflict, to keep communication confidential. Most important, because of the conflict, the consultation cannot concern matters relating to the individual’s official duties or general affairs of the corporation.

Id. (emphasis added). See also In Re: Investment Bankers, Inc., 30 B.R. 883 (D.R.I. 1983), wherein the court held in the context of joint representation by an attorney:

Thus, the Trustee is the successor in interest to the debtor, who was represented by the defendants, and has a right to the production of the files and disclosure of all information pertinent to that representation. Certainly, where the Trustee has waived the attorney-client privilege on behalf of the debtor corporation, the Trustee has an absolute right to all of the information sought herein.

Id. at 887 (emphasis added).

The Standard Financial court also held that the privilege was waived by the trustee and that the former management could not prevent disclosure of the documents, stating:

... unforced disclosure is disclosure and should support the waiver argument. Otherwise, immunity is too easily obtained for damaging documents and the facts contained therein, by simply deliberately arranging an accidental disclosure. Further, mistake or inadvertence is, after all, merely a euphemism for negligence and, certainly, pre and post 1787, one is expected to pay a price for one’s negligent actions.

Id. at 330.

Such risks inherent in joint representation of management along with the corporation are not new. Benders Bankruptcy Guide paragraph 3.06 points out that counsel to a corporation should advise the client of the potential loss of confidentiality. The Petitioners have a tremendous stake in preventing the disclosure which may reveal their responsibility while acting for the corporation. If the documents demonstrate Jalis’ allegations by the Petitioners actions as relates to Real Income, then Petitioner Rogers’ liability may be proven and clearly establish his personal responsibility which resulted in Real Income committing the breach of fiduciary duty. This will then cement his personal liability to Respondent in the underlying action, because a corporation can only act through its agents. Standard Financial, supra.

The communications are not "confidential" or "privileged" because the privilege was waived, and does not apply to the extent the communications relate to the Respondent actions as an officer of Real Income.

II. THE COMMUNICATIONS AT ISSUE ARE NOT PRIVILEGED BECAUSE THE PETITIONERS HAVE FAILED TO PROVE THE CONTENTS OF THE COMMUNICATIONS, AND COMMUNICATIONS WHICH ARE IN FURTHERANCE OF A SCHEME TO DEFRAUD OR MAKE A FALSE CLAIM IN VIOLATION OF LAW ARE NOT PROTECTED BY THE PRIVILEGE.

The Petitioners have not provided any court with the "communications" in issue for review. The Order Granting Stay Pending Appeal prohibits the disclosure of "any information that he [Respondent’s counsel] has discovered from a review of Real Income, Inc.’s files" to "any other person" (Petitioners’ Appendix A-27). In order to make sure the court’s orders are followed, Respondent does not attach the letters in issue.

Since the Petitioners have not provided the "communications" for review by any court, the Petitioners cannot meet this burden of proving the applicability of privilege. See Kusch v. Ballard, 645 So. 2d 1035 (Fla. 4th DCA 1994), and In Re: Cumberland Investment Corp., 120 B.R. 627 (D.R.I. 1990).

If the communications supply evidence that the Petitioners are attempting to continue a fraudulent scheme or make a false claim, to-wit: that the joint venture had terminated in 1990, or that there exists a basis for any counterclaim, then the communications would not be privileged. Such communications would violate the longstanding law that the attorney/client privilege may not be used to shield the making of a false claim or the commission of a fraud or fraudulent scheme. Such is not part of the attorney/client relationship being protected by law. See Leithauser v. Harrison, et. al., 168 So. 2d 95 (Fla. 2d DCA 1964):

It appears to be well settled that the perpetration of a fraud is outside the scope of the professional duty of an attorney and no privilege attaches to a communication and transaction between an attorney and client with respect to transactions constituting the making of a false claim or the perpetration of a fraud. ...

Citations omitted. Id. at 98.

Accord Kneale v. Williams, 158 Fla. 811, 30 So. 2d 284 (1947), in citing prior authority, "The court cannot permit it to be said that the contriving of fraud forms part of the professional business of an attorney or solicitor." Id. at 287-288. See also Fla. Stat. 90.502 (4)(a). Accord In Re: Grand Jury Investigation, 575 F.Supp. 777 (N.D. Ga. 1983) and In Re: Warner, 87 B.R. 199 (M.D. Fla. 1988).

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III. PETITIONERS’ LEGAL AUTHORITY FOR DISQUALIFICATION IS MISREPRESENTED AND INAPPLICABLE.

State Farm v. K.A.W., 575 So. 2d 630 (Fla. 1991), is cited by Petitioners in regards to "confidences" where Petitioners’ stated that: "The relationship is not the issue. The confidences disclosed are the issue." (Petition, pp. 7) The citations Petitioners make to State Farm and Ford v. Piper Aircraft, 436 So. 2d 305 (Fla. 5th DCA 1983) are easily distinguishable from the facts in this case. State Farm held that the "unfairness" and "potential informational advantage" "was gained as a result of her law firm’s former representation of Mr. Wilkerson in this action". State Farm at 633 (emphasis added). A very plain reading of that case shows that the cited language and principles the Petitioners use are wholly without bearing on the issues raised by this petition. There has not been, nor can there be, any allegation that Respondent’s counsel ever represented any of the Petitioners, as was acknowledged by the Petitioners on page 7 of the petition.

Adelman v. Adelman, 561 So. 2d 671 (Fla. 3d DCA 1990) fails to shed any light or sustain the position of the Petitioners in that again it dealt with dual representation of opposing parties causing an indirect breach of attorney/client privilege and, further, that situation did not involve a waiver of attorney/client privilege as exists in this case.

General Accident Insurance Company v. Borg-Warner Acceptance Corporation, 483 So. 2d 505 (Fla. 4th DCA 1986), is wholly irrelevant because the trial judge had inadvertently provided the documents at issue to opposing counsel. In the present case, the documents were the property of the bankruptcy estate and in the hands of the Trustee who had no obligation to maintain any "attorney/client privilege." The Court should review the well reasoned concurring opinions in Kusch v. Ballard, 645 So. 2d 1035 (Fla. 4th DCA 1994) which criticizes the attempted breadth of application that the Petitioners attempt to make here to disqualify Respondent’s counsel, which suggests that Borg-Warner should be strictly limited to its facts.

IV. SINCE THE "COMMUNICATIONS" WERE NOT CONFIDENTIAL, RESPONDENT’S COUNSEL ACTED ETHICALLY AND PROPERLY.

The last section of the petition accuses counsel for the Respondent of acting unethically. Petitioners fail to cite any of the model Rules of Professional Conduct promulgated by the Florida Bar in making this serious accusation.

Petitioners’ sole authority is a bar opinion relating to inadvertent disclosures of confidential communications. The lone Bar opinion cited by Petitioners is totally irrelevant to the undisputed facts facing this Court (the full text of the Florida Bar opinion is set forth below in the footnote). It is undisputed that, the documents in issue were held in the possession of a third party (the Trustee) not within any circle of privilege and the trustee, had no duty to maintain any confidentiality thereof and intentionally made the disclosures. In fact, as seen from the law cited above, the bankruptcy trustee was not required to treat the documents as confidential and had authority to waive any Real Income attorney client privilege. Petitioners’ counsel’s knowledge or lack of any notice of what the Trustee would do with the documents are irrelevant, as was clearly enunciated in the O.P.M. case supra. Such a waiver is in the trustee’s sole discretion.

Counsel for Respondent was fully within his rights and obligation as a zealous advocate for his client to contact the bankruptcy trustee regarding a matter of common interest, to-wit: Seeking redress for Jalis and the bankruptcy estate from the officers who acted on behalf of Real Income in causing the loss to Jalis and the estate in violation of their fiduciary duties to both.

The trustee then acted appropriately and lawfully in waiving the privilege and providing complete access to the files of Real Income which were in his possession (any confidentiality having been waived by him having possession thereof). This achieves the Trustee’s obligation of investigating insider fraud and mismanagement which resulted in the loss such as to maximize the value of the estate for the benefit of the shareholders and creditors; and, providing information so that the truth could become known and the ends of justice achieved.

The actions of the trustee resulted in a Compromise which aligns the interest of Jalis and the bankruptcy estate as shown in the proposed Compromise, contained in Respondent’s Appendix as Exhibit 6, and serves to help conclude litigation, not protract it. The Bankruptcy Court agreed, and at the hearing on the Compromise on July 23, 1996 announced in open court that the Compromise was approved.

Because Petitioners’ accusations of unethical conduct are wholly unsupported by the law, the Respondent hereby requests this Court strike the third section of the instant petition as being a sham pleading and additionally request attorney’s fees as a result thereof.

CONCLUSION

The petition is wholly deficient and without merit in light of the Petitioners’ failure to demonstrate a clear violation of any privilege as set forth in the above-cited law and the Respondent respectfully requests the Court deny the petition and award interlocutory appellate attorney fees to the Respondent, Jalis Development, Inc., due to the frivolous nature of the petition.

Respectfully submitted,

___________________________________

Marc P. Ossinsky, Esquire FBN: 438588
Marc P. Ossinsky, P.A.
210 N. Wymore Road
Winter Park, Florida 32789
Phone: 407/629-2484 Fax: 629-4424
Attorney for Respondent