Clark v Allen & Overy LLP  2019 NY Slip Op 30146(U)  January 16, 2019  Supreme Court, New York County  Docket Number: 453138/2017  Judge: Arlene P. Bluth is an employment abuse case (between lawyers) that went all the way to a request for cert at SCOTUS.  For our purposes, it’s not a JL § 487 case.  Even more interesting, there is no cause of action for a 3d party intentionally hacking your attorney-client privileged emails!

“Plaintiff Deidre Holmes Clark is an attorney who formerly worked for defendant law firm, Allen and Overy LLP (“A&O”). A&O terminated plaintiffs employment in January 2009 for gross misconduct. In June 2011, plaintiff filed a sexual harassment and retaliatory discharge claim
against A&O. Plaintiff alleged defendants “illegally hacked into, accessed, viewed, copied and distributed to third parties Plaintiffs completely personal emails to her friends and lover dealing
solely with her sexual and romantic life, including from her private Hotmail account and including
deleted emails” (Plaintiffs complaint at 5). Defendant Proskauer Rose (“Proskauer”) represented
A&O in that 2011 action. In that 2011 action, the Court (York, J.) ordered plaintiff to sit for an Independent Medical Exam (JME) and ordered that the entire trial docket be sealed.  Plaintiff
refused to sit for the !ME and appealed Justice York’s decision directing her to sit for the !ME to
the First Department. While the appeal was pending, plaintiff sought a stay of the Supreme Court
case and defendants sought to seal the record pertaining to the appeal. Plaintiff and defendants had
a conference with Appellate Division Judge Judith Gische who granted the stay and declined to seal the documents. Plaintiff claims that following the conference with Judge Gische, Proskauer made a deal with the clerk of the First Department to hide the documents regarding the appeal from the public. ”

“A violation of §487 of New York Judiciary Law occurs when an attorney is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” (N. Y. Judiciary Law § 487). Plaintiff alleges defendants engaged in a pattern of fraud upon the courts in violation of §487 by allegedly making a deal with the clerk at the First Department to hide documents and by filing what plaintiff believes is a false Notice of Entry under seal (see Plaintiffs Memorandum in Law in Opposition to Defendants’ Motion to Dismiss at 23). Plaintiffs  claim fails because defendants were following Justice York’s order that the trial court documents were to be filed under seal. Even if the appellate documents were mistakenly filed under seal in the trial court, that does not suggest an intent to deceive the court and this cause of action is dismissed. ”

“CPLR 4503 provides that:
“Unless the client waives the privilege, an attorney or his or her employee, or any
person who obtains without the knowledge of the client evidence of a confidential
communication made between the attorney or his or her employee and the client in
the course of professional employment, shall not disclose, or be allowed to disclose
such communication, nor shall the client be compelled to disclose such
communication, in any action, disciplinary trial or hearing.”

Plaintiff alleges that while working with A&O her calls and emails were being monitored, including communication with an attorney regarding her sexual harassment complaint. She states her righi to attorney client privilege was breached because A&O purportedly read those emails. Plaintiffs claim must fail because New York courts do not recognize a claim for breach of attorney-client privilege for a third person’s intrusion into the communication between the attorney and the client (see Madden v Creative Servs., Inc., 84 NY2d 738, 744 [1995]). “