GEORGE MADDEN ET AL., PLAINTIFFS, v. CREATIVE SERVICES, INC., ET AL.,
DEFENDANTS.
84 N.Y.2d 738, 646 N.E.2d 780, 622 N.Y.S.2d 478 (1995).
January 12, 1995
USCOA,2 No. 240 (1995 NY Int. 005)
Decided January 12, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
A. Vincent Buzard, for Plaintiffs.
Norman M. Spindelman, for Defendants Creative et al.
Kenneth A. Payment, for Defendants National et al.
Association of Trial Lawyers of America, amicus curiae.
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KAYE, CHIEF JUDGE:
Does an intruder's unauthorized inspection of a client's documents in
a lawyer's office give rise to a cause of action by the client against
the intruder for violation of the attorney- client privilege? On the
facts presented, we answer this question, certified to us by the
United States Court of Appeals for the Second Circuit, in the
negative.
As set forth in the parties' submissions, plaintiff George Madden
founded a neighborhood coalition to oppose construction of a 12-screen
movie theater complex by defendant National Amusements, Inc., a movie
theater chain, in a residential area of the Town of Pittsford. Madden
enlisted Francis E. Kenny, a partner in the Rochester firm of Nixon,
Hargrave, Devans & Doyle, to provide pro bono legal services to the
coalition, which included petitioning the Town Board to deny the
rezoning application filed by National. National in turn retained
defendant Creative Services, Inc., a private investigative firm.
According to plaintiffs, the purpose was to intimidate and discredit
them; according to defendants, the purpose was to uncover any possible
connection between Madden and National's competitor Loews Theaters,
Inc., also a Nixon, Hargrave client.
On November 14, 1991, Creative dispatched Ralph Douglas Howe, Jr. and
Michael Sean Cole--Massachusetts-based investigators not licensed in
New York--to place Madden and his wife, plaintiff Roseanne Cohen,
under surveillance. The investigators allegedly followed and
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Vincent Buzard, for Plaintiffs.
Norman M. Spindelman, for Defendants Creative et al. Kenneth A. Payment, for Defendants
Does an intruder's unauthorized inspection of a client's documents in a lawyer's office give
On the facts presented, we answer this question, certified to us by the United States Court
The investigators allegedly followed and photographed plaintiffs without their knowledge.
After business hours the next day--Friday, November 15--Howe and Cole entered the Nixon,
Charged with third degree burglary (Penal Law 140.20) and petit larceny, Howe and Cole each
Plaintiffs sought $3.3 million in damages--$1 million in compensatory damages for their
The District Court dismissed the complaint in its entirety for failure to state a claim,
The Second Circuit certified two questions to us--whether a cause of action for invasion of
Agreeing that the proposed cause of action for invasion of the attorney-client privilege
Defendants wilfully and intentionally invaded and interfered with Plaintiffs' professional
In assessing the viability of plaintiffs' claim, the District Court measured the allegations
In that no such disclosure is alleged by plaintiffs, the court struck the claim, adding that
That a proposed cause of action has not previously been recognized by us, or indeed by any
Analysis begins by defining the interest plaintiffs would, by the cause of action they urge
That precept is embodied in the Code of Professional Responsibility binding attorneys to keep
As defined by the Legislature, it is an evidentiary privilege that protects against
A private right of action will be implied only where the plaintiff is one of the class for
Plainly plaintiffs would fail that test, as they fall within neither the statutory terms nor
Rather, plaintiffs urge that a new tort claim be created for third-party intrusions because,
Tort liability of course depends on balancing competing interests: "the question remains who
The professed basis for plaintiffs' claim is protection of the attorney-client privilege, yet
The alleged damage resulting from the third-party intrusion is solely a generalized fear for
Following certification of questions by the United States Court of Appeals for the Second
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