## Facts

- George Madden led a neighborhood coalition opposing a rezoning application for a proposed movie theater complex in the Town of Pittsford, New York.
- Madden and his wife, Roseanne Cohen, were represented pro bono by an attorney at a law firm involved in the zoning dispute.
- The developer retained a private investigative firm; two investigators (not licensed in New York) placed Madden and Cohen under surveillance and photographed them.
- The investigators entered the law firm’s offices claiming to have lost a ring, gained access to counsel’s office, and were discovered photographing documents related to the zoning dispute that plaintiffs claimed were privileged.
- The investigators fled, were later located at a motel, and were arrested; both ultimately pleaded guilty to trespass.
- Plaintiffs alleged no developed photographs and no disclosure or use of any information from the photographed materials.
- Plaintiffs sued in federal court, asserting (among other claims) intentional interference with the attorney–client privilege based on the intrusion and photographing of documents in counsel’s office.
- The federal district court dismissed the complaint; the Second Circuit certified to the New York Court of Appeals whether New York recognizes a tort cause of action for violation of the attorney–client privilege on these facts.

## Issues

1. Whether an intruder’s unauthorized inspection of a client’s documents in a lawyer’s office gives the client a tort cause of action against the intruder for violation of the attorney–client privilege.
2. Whether the absence of alleged disclosure or use of privileged information affects recognition of such a tort given the availability of traditional tort and criminal remedies.

## Decision

- The New York Court of Appeals answered the certified question in the negative.
- The court held that, on these facts, New York does not recognize an independent tort claim for “violation” of the attorney–client privilege based solely on unauthorized inspection/photographing of documents in counsel’s office.
- The court emphasized that plaintiffs alleged no use or disclosure of any privileged information and that other legal remedies address the underlying intrusion.

## Legal Principles

- The attorney–client privilege is principally an evidentiary and professional-responsibility doctrine protecting confidential attorney–client communications in judicial and similar proceedings, not a freestanding tort duty creating civil damages liability against third parties.
- Absent allegations that wrongfully obtained privileged material was used or disclosed, New York will not create a new tort based solely on intrusion into counsel’s files.
- Wrongful entry and related misconduct are addressed through existing causes of action (e.g., trespass and other traditional torts where supported by proof) and criminal law; the privilege remains available to block later use of privileged communications in litigation.

## Conclusion

New York declined to recognize a standalone tort for invasion or violation of the attorney–client privilege where investigators improperly accessed counsel’s office and photographed documents but plaintiffs alleged no disclosure or use of privileged information and had other established remedies for the intrusion.


Madden v. Creative Servs., Inc., 84 N.Y.2d 738 (1995)