UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

UNITED STATES OF AMERICA

CATBERINE DUFFY PETIT

Petit seeks suppression of all information Richard E. Poulos, Esq., Petit's former attorney, supplied to the government in violation of attorney/client privilege, work product doctrine, and the Sixth Amendment to the United States Constitution.

For many years Richard E. Poulos, Esq. represented Petit and Petit's business interests including C.D.P. Inc., White Way Amusements, and Old Orchard Pier Co. in a variety of civil matters. On October 31, 1990 Poulos was paid $ 499,368.78 for his work on the Bernstein Shur portion of the Key Bank case. Ex 1. In 1992 Poulos was reimbursed an additional $ 19,025.60 for costs associated with the Key bank litigation. In 1993 several of Petit's creditors placed her in an involuntary bankruptcy. Part of petit's obligation as a debtor in bankruptcy was to file a series of lists know as schedules. One of the required lists contains the potential assets of the debtor including potential legal claims. Petit, represented by a bankruptcy attorney, listed a potential legal claim as, "possible attorney malpractice claims". Petit also listed on her bankruptcy schedules that Poulos held a $ 100,000.00 second mortgage on what was then her home at 1 Fourth Ave., Old Orchard Beach. Poulos took great offense at the term "possible attorney malpractice claims", apparently assuming that he was the attorney involved. It is true that a portion of Petit's case against Key Bank was dismissed on procedural grounds attributable to conduct of Poulos in an earlier but related lawsuit in which he represented Petit, Petit v. Key BancShares of Maine, 635 A.2d 956, 959 (Me. 1993). Poulos grew increasingly hostile to Petit during the course of the bankruptcy case intervening and filing numerous pleadings "pro se" based on his status as a creditor. On approximately January 2, 1996 Poulos met with Paula Silsby, a high ranking prosecutor with the U.S. Attorneys Office in Portland. At that meeting Poulos disclosed to Silsby privileged information which Poulos had gained as part of his representation of Petit. See attached Exhibit 2, a portion of Poulos's Memo summarizing the meeting with Silsby. Poulos remained a counsel of record for Petit in the Key bank case until he withdrew on January 27, 1997. Ex. 4.

The attorney client privilege is "the oldest of the privileges for confidential communications known to the common law." Upjohn Company v. United States, 449 US 393, 389, 101 S.Ct. 677, 682, 66 L.Ed. 2d 5 84 (1981). The attorney client privilege applies so that: 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 its instance permanently protected 7) from disclosure by himself or the legal advisor. In re Richard Roe, Inc., 69 F.3d 3 9, 3 940 (2nd Cir. 1995). The attorney client privilege is designed to promote unfettered communication between the attorneys and their clients so that the attorney may give fully informed legal advice. The protection given to attorney work product serves a similar purpose: "to avoid chilling attorneys in developing materials to aid them in giving legal advice and in preparing a case for trial." Id. A lawyer has an obligation not to reveal client confidences. Maine Code Of Professional Responsibility 3.6(ID. US v. Edgar, 82 F.3d. 499, 508 (1 st Cir. 1996). A lawyer also has an obligation to assert privilege on behalf of a client. Id.

The First Circuit recently re-affirmed the sanctity of the attorney client privilege in a similar situation. US. v. Rakes, 97-1693, (1 st. Cir., 2/11/98). Rakes was indicted and with perjury and obstruction of justice based on allegedly false testimony he gave as a grand jury witness on two earlier occasions. The allegedly false testimony related to his denial that he was being extorted resulting in the sale of his store. Rakes business attorney for the formation of the company that owned the store and sold the store was John Sullivan. The government subpoenaed attorney Sullivan to the grand jury and obtained a compulsion order requiring Sullivan to respond to grand jury questions after Sullivan asserted attorney client privilege. Rakes moved to suppress all conversations between him and attorney Sullivan. The district court granted the motion and the government appealed. The First Circuit not only affirmed, but chastised the government stating the appeal "ought never to have been brought".

In this situation not only did Poulos fail to assert the privilege, he went to the government as a spy and an informant against his client! Poulos's motive, be it fear of a malpractice action, anger at the malpractice claim, retaliation, or spite show his malice. At a time when he remained listed as counsel of record in a pending civil suit, Poulos violated the attorney client privilege he owed Petit. While Poulos can and should be faulted for his conduct, the government was wrong in allowing him to reveal attorney client confidences. The government knows it can not use information gained in violation of attorney client privilege, and by doing so they have jeopardized and called into question their entire case. Once arsenic is dropped into a glass of water, the whole glass is poisoned. It is doubtful that the government can purge this taint.

Petit requests a testimonial hearing where the Court can hear from the relevant witnesses and make a factual determination upon which to apply the law. Petit requests this court enter an order suppressing all privileged information provided to the government by Poulos. The Defendant further requests that this Court enter an order precluding the government from making direct, or derivative use of the contents of such privileged information and requiring the government in the nature of a Kastigar hearing to affirmatively show by a preponderance of the evidence that no such information was relied on in obtaining the warrant of arrest for the Defendant, the currently pending indictment against the Defendant, preparation for or use in the government's case in chief for trial.

Dated: March 25, 1998

David Beneman, Esq.

LEVENSON, VICKERSON & BENEMAN

P.O. Box 465

Portland, @ 04112-0465

Tel. (207) 775-5200

Fax. (207) 772-1829

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