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]). “

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.