Summary Discharge of Mechanics’ Liens by By Thomas J. Rossi

INTRODUCTION

A mechanic’s lien is a powerful tool for workers, contractors and material suppliers who have monetary claims for work performed or materials supplied to improve real property.  Mechanics’ liens are powerful, because the lien is a cloud on title which can cause great difficulties for owners, and because mechanics’ liens are inexpensive to file, yet difficult to discharge summarily.  Basically, unless a lien is invalid on its face because the notice of lien itself does not contain the information required by New York State Lien Law Section 9, or is filed late, it cannot be discharged without litigating the underlying claim.

Most owners, or contractors whose subcontractors have filed liens, will argue to their counsel that the amount claimed to be due is not owed at all, or the amount claimed is highly exaggerated.  Therefore, they argue, the lien is invalid and should be easily and summarily dismissed.  Usually, their cry is that the contractor or subcontractor did not finish its work, did not perform its work in a timely and workmanlike manner, or the amount allegedly due is for extra work that is not extra work at all, but rather part of the base contract.

Unfortunately, those arguments do not entitle the lienee to a summary discharge of the mechanic’s lien.  These are questions of ultimate entitlement that require a decision on the merits of the claim, before the validity of the lien can be determined.  This presents a difficult problem for the owner who invariably wishes to discharge the lien as soon as possible because of an impending sale or mortgaging of the property, and to contractors who are typically contractually required to remove any lien filed by subcontractors.  It also impacts commercial tenants whose leases invariably require the discharge of mechanics’ liens arising from work in the tenant’s space.

The purpose of this article is to provide some suggestions for dealing with mechanics’ liens when representing owners, general contractors, or leasees.  We will deal only with private improvement liens which effect title to real property and not public improvement liens, which attach to the government appropriation for the improvement.

Bonding the Lien

The most commonly used means to discharge a mechanic’s lien is to “bond it off” with a surety bond.  In effect, the security for any judgment in favor of the lienor is shifted from the real property to the bond.  This is a statutory right available to all.  (Lien Law Section 19(4))

A bond in a sum equal to 110% of the lien must be filed with the County Clerk on notice to the lienor, who has, in limited instances, 10 days to object to the sufficiency of the bond.  If no objection is filed, the lien is deemed discharged without further action or proceeding.  (Lien Law Section 19(4)(a))

The difficulty that many face is the prospect of procuring the bond itself.  A contractor that regularly obtains payment and performance bonds for its work, usually has a certain amount of “bonding capacity,” and so, is able to obtain a lien bond without much difficulty.  For a property owner or contractor without bonding capacity whose subcontractor has filed a lien, things can be much more difficult, with the surety usually requiring the posting of collateral equal to at least the amount of the bond.  Additionally, bonds can be expensive with premiums ranging from two to five percent of the bond per year.  If the litigation works its way through the state court at a typical pace, two or three years worth of premiums could easily be incurred.

Summary Discharge
Resulting from Imperfect Filing

Many lienors choose to simply file their liens without assistance of counsel.  However, since 1988 this can be a very dangerous undertaking, because of the very specific filing requirements which, if not followed, are fatal to the lien.

A lien must be filed within 8 months (4 months in the case of real property improved by a one-family dwelling) from the date the last of the work or materials were supplied. (NYS Lien Law Section 10)  In addition to the filing of the lien with the County Clerk in the county where the property is located, the notice of lien must be served upon the owner by certified mail within 30 days of the filing.  (NYS Lien Law Section 11)  An affidavit of service must be filed with the County Clerk within 35 days of the filing of the notice of lien.  Id.  Additionally, if the lienor does not have a direct contractual relationship with the owner, such as a subcontractor or material supplier, the lienor must also serve the entity with whom it had a contract, the general contractor (if different), and the owner with the notice of lien and file the affidavits of service within the 35 days. (NYS Lien Law Section 11-b)

The failure to serve the notice of lien upon the appropriate parties is a fatal defect that cannot be remedied nunc pro tunc and will result in the summary discharge of the lien.  Hui’s Realty, Inc. v. Transcontinental Construction Services, Ltd., 147 Misc. 2d 1080, 559 N.Y.S.2d 114, aff’d 168 A.D.2d 302, 562 N.Y.S.2d 633 (1st Dept. 1990); Podolsky v. Narnoc Corp., 196 A.D.2d 593, 601 N.Y.S.2d 320 (2d Dept. 1993).  Accordingly, when a client is served with a notice of mechanic’s lien, it is wise to first determine if service was effectuated on the proper parties, and whether the affidavits of service were timely filed.  If they were not, the lien is invalid and subject to summary discharge through a special proceeding.

Here, a bit of strategy sometimes will go a long way.  If before the eight month time period during which a lien may be filed (four months in the case of a one-family dwelling) has expired, the notice of lien is shown to be fatally defective because of failure to properly file or serve it, the lienor is permitted to simply file a new lien, and will most probably do so properly the second time around.  However, once the time period for filing has expired, the lienor will not have an opportunity to re-file the lien.  Therefore, the better strategy is to wait to raise the issue until the time a lien can be properly filed has expired, i.e., after the 8th or 4th month from the last of the work.  The date when the last of the work or materials were supplied is easily obtained, since the invalidly filed notice of lien must include the date when the last of the work was performed or materials supplied (Lien Law Section 9).

Lien Law Section 59 Demand

A mechanic’s lien will expire, unless extended, after one year if the lienor does not commence a lien foreclosure action and file a notice of pendency before that time.  (Lien Law Section 17)  Except for property improved by a single family house, a lien can be extended for one additional year by simply filing an extension of lien.  (In the case of a single family residence, the lien can be extended only by Court Order signed and filed before expiration; see, Lien Law Sec. 17)

Of course, if the property owner waits for one year from the filing and the lien is not extended, nor a foreclosure action and notice of pendency filed, the lien will expire by operation of law (Lien Law Section 17).  Many times, however, the owner or contractor will not have the time to wait for the expiration of the lien by operation of law.

Lien Law Section 59 provides some relief from the one year or longer wait.  A Section 59 Demand served upon a lienor requires the lienor to commence its foreclosure action by a date certain not less than 30 days after service of the Demand.  If the action is not commenced, the lien is subject to summary dismissal.

It may seem as though an owner or contractor is inviting litigation, but a Lien Law Section 59 Demand can be a very useful and effective tool in lien law practice.  While the filing of a notice of lien is relatively simple and inexpensive, the commencement of a lien foreclosure action is much more complicated and expensive.

There are services available to contractors that will file a mechanic’s lien and appropriate affidavits of service for less than $300.  Accordingly, even if a lienor feels that it’s claim is marginal, it may be worth a $300 fee to simply file the lien, and hope that the owner will be desperate enough to discharge the lien because of pressure from the owner or an upcoming real estate transaction to settle the claim.

It is a completely different matter for the lienor to retain counsel to commence a lien foreclosure action.  A lien foreclosure action is a complex matter where the owner, subsequent mortgagees and others who have filed liens against the property must be identified and named as defendants (Lien Law Section 44).  Accordingly, the commencement of a lien foreclosure action will require the lienor to hire experienced counsel willing to commence the foreclosure action.  In cases where the claim is marginal or the lienor not well funded, the lienor may not timely commence the foreclosure action in response to a Section 59 Demand.

It should be noted that a lienor, even without a valid lien, still has other remedies available to him, such as a claim for breach of contract, quantum meruit and account stated.  However, without a valid lien, the cloud on title will disappear.

CONCLUSION

As indicated above, mechanics’ liens are powerful weapons that are generally difficult to dismiss without protracted litigation.  However, the above procedures can result in the summary discharge of a mechanics’ lien, thereby clearing the encumbrance on title.

*Thomas J Rossi is a partner in the law firm of Rossi & Crowley, LLP located in Douglaston, New York.  His practice is concentrated on construction and real estate litigation matters.

Trials and Tribulations: The Conclusion

In memory of Terry Molloy, Esq, 1923-2013.  The following is the last in a series of articles on the Queens Family Court.

At last, the conclusion to the history of the Family Court. It should be duly noted, as this final chapter is written in the year 2014, that the City of New York is now under the leadership of a Mayor who is a Charles Dickens fan. Mayor Bill De Blasio has repeatedly said that he sees 21st century New York City through the prism of “A Tale of Two Cities.”1

I’ve told this story without pictures, even though in the year of the fiftieth anniversary of the Family Court, clearly photos are very readily available. I wanted to be true to Dickens he didn’t have easy access to photography in the mid 1800’s and so I chose to write this imposing the same constraint upon myself.  Besides, I know, after more than a quarter century of practicing law in the Family Court, that a picture is not worth a thousand words, just as any regular in Family Court knows that blood is just not thicker than water.  Family Court is a microcosm of our culture in any decade, in any century. The study of Family Court is the ultimate study of how our civilization is functioning and how we, as a society, treat people.

I’ve chosen to focus on the people whose actions resulted in the many changes in the Family Court, including the change that ultimately resulted in a “monumental building”2 to house the Family Court, as it now exists, on Jamaica Avenue, in downtown Jamaica, New York.

One of the last people that needs to be recalled, to properly tell this story, is Claire Shulman, the Borough President of Queens County from 1986 until 2002.3

On May 31, 1995, Borough President Claire Shulman announced that the Queens Family Court would relocate from its Parsons Boulevard building to Jamaica Avenue and 153rd Street, the site at that time of a city-owned parking lot used by workers at the nearby Social Security Administration. The Daily News reported that the Borough President said the new facility should be built in two to three years.4  The Borough President proved, as she made this historic announcement, that she was well versed in her Family Court history as she declared that the “Family Court has been a disaster forever.”

Ms. Shulman provided the updated history in that the Judges of the Court had voiced their concerns to her, for more space and better conditions, for the past two years and she had intentions to finally resolve the long standing problem of the Family Court building.  The Borough President also made known in her announcement of the new building which was to come, that the City General Services Administration had wanted to renovate the existing Parsons Boulevard building and remove a small parking lot to provide additional space. The Borough President said that that plan was not “feasible.”6  She created another plan in which she found the Jamaica Avenue site on which the new building would be located. She said this provided “a good location, it’s near public transportation.” The Borough President wanted a new building, and she wanted a new building that would be able to house the needs of the Queens Family Court properly for many years to come.7

The announcement of plans for a new Family Court, in the Daily News, also relayed that this would be a move to a $78 million dollar courthouse.8  The new structure, not yet even designed in 1995, was said to double the number of courtrooms from eight to sixteen, in addition to five hearing rooms.  John Cairns, the Queens County Family Court Clerk of the Court, in 1995, was also present for the announcement of the new Court, noted that the court handled 25,000 cases a year.9

As always, there were local supporters, and local critics, of the Queens Family Court project. The main difference from the prior attempts to get a Family Court built over the past fifty years, was the support of the Borough President for a new building, and her leadership. The Daily News reported on March 28, 1999, that the construction of the new Queens Family Court Building would begin in June. It was now described as an “82 million dollar five story structure” that would bring “new life” and “more parking woes” to Jamaica Avenue. But, Tom Czarnowski, the project manager with Pei Cobb Fred/Gruzen Samton Associates, the Manhattan architecture firm that designed the new court facility pointed out, as Borough President Shulman had, that “it’s convenient to public transportation.”10

On June 24, 1999, the Queens Chronicle had a front page announcement that Borough President Claire Shulman, Mayor Rudy Giuliani, and Chief Judge Judith Kaye were on hand the prior week to break ground for the new Family Courthouse in Jamaica. Interestingly, the new Courthouse had now become an eighty five million dollar “high tech facility.” Reasons were never given in the press for the eight million dollar increase. Four years had passed since the 1995 announcement to the 1999 ground breaking. It was reported that the new building was to have expanded room for Courtrooms, Judges Chambers, agency office spaces, and on site supervised visitation and daycare.11

Shulman said “This new state of the art facility will provide a welcoming environment for families, and will be more sensitive to the needs of those who use and work in the courthouse every day.”12 Carlisle Towery, the Executive Director of the Greater Jamaica Development Corporation, said he was pleased that the Courthouse would remain in Jamaica as it would be a “boost” to the overall revitalization of Jamaica. In attendance at the ground breaking ceremony was the Queens County Bar Association President Steven Wimpfheimer who called the Family Court “a wonderful thing for the county and people of Queens in need of a Family Court.”13

The Queens Chronicle also reported that The New York State Dormitory Authority’s Metropolitan Operations was overseeing the project which was also to include a 217 car garage at Archer Avenue and 150th Street. The new Jamaica Family Court project was reported to be part of a 2.5 billion dollar city wide program, the Court Facilities Master Plan, which was including new Family Courts in Brooklyn, Queens and Staten Island as well as renovation of some other courts in the city. There was a twenty five million dollar stipend to renovate the State Supreme Courthouse on Sutphin Boulevard in Jamaica.14

The 85 million dollars for the new Queens Family Court was to be provided by the City of New York, which would be financed with bonds issued by the Dormitory Authority of the State of New York. The State of New York was to provide an aid subsidy package for the interest the bonds accrue. The Architectural firms of Pei Cobb Freed and Associates and Gruzen Samton designers of the Family Court project, were recognized by the Art Commission of the City of New York for its innovative design of the planned new 30,000 square foot courthouse, than expected to open by the fall of 2001.15

The new Queens Family Court went up with the start of the 21st century, as part of a “work under way in each of the boroughs” which was “inspired by a 13 year old state law” that required ‘the city to evaluate its courthouses and repair or expand them as necessary to ensure that they are “suitable and sufficient.” The New York Times reported in December, 2000 that the “push” to fulfill this mandate started before Mayor Guiliani, but it was in the final year of his tenure, that the “construction campaign” reached its “full frenzy.”16  In the County of Queens, the “push” to accomplish what the 13 year old law required had come from Borough President Shulman.

The Times further reported that Steven Fishner, the Mayor’s Criminal Justice Coordinator, claimed this was “a public works program on the scale the City of New York has not seen since the administration of Fiorello La Guardia and the Works Progress Administration” — he also added with obvious pride “It will be Mayor Giuliani’s Legacy.”17

The review here of the documentary evidence available from that time, however, shows that the structure on Jamaica Avenue now housing the Queens County Family Court is the legacy of former Borough President Claire Shulman.  Dickens would be proud of the Shulman record on the Queens Family Court. But, he might be curious as to why her efforts in bringing about the Family Court building on Jamaica Avenue have not yet received any kind of lasting recognition.

The New York Times reported about December 5, 2000 that the “rising demands on the court system, particularly the Family Court, to serve as both arbiter of justice and social services supermarket has forced space requests to make room for everything from drug treatment facilities to offices for counselors who tend to the needs of abused or neglected children.” Jonathan Lippman, the Chief Administrative Judge for the state’s court system was quoted to say that “at a time when there are so many parts of our lives that are chaotic, you cannot afford to have a chaotic court system.”18

The architectural plans, which got underway at the start of the 21st century and included the new Queens Family Court, were in stark contrast to the plans presented in the last courthouse construction boom, in New York City, back in the 1930’s.  There was no longer to be an adherence to the “grand marble entrance stairwells, towering neo-Classical style columns and robed sculptures holding staffs and scales to represent the figures of authority and justice” of the yesteryear of seventy years ago.19  The new court would represent the new normal — not the world in which Mr. Bumble told the Judge that “the Law is a Ass.”20  The 21st century of New York City is not Dickens’ England, nor would it want to be, nor should it seek to look like a scene from Dickens in any way.

The new courts, including the new Family Court on Jamaica Avenue, were designed with “lots of exterior glass, open courtyards and natural light.” Ian Bader, a partner at Pei Cobb Freed and Partners, the designer of the Family Court at 151-20 Jamaica Avenue, was quoted by the Times to explain that the new Courthouse “is different from the temples of justice of the past, which are set apart and somewhat aloof.”21

Mr. Bader spoke of the new glass and brick plan for Queens Family Court and explained that the Court was to be situated around a large glass enclosed atrium, which was planned to have a translucent sculpture by the German-American artist Ursula von Rydingsvard suspended from the ceiling. The vision of his firm included the court structure opening out onto the grassy expanse of Rufus King Park.22

According to a 1998 study of city capital demands and allocated financing by the city comptroller’s office, It was estimated at the turn of the 21st century that the city of New York had more than 90 billion in estimated outstanding infrastructure needs — namely, schools, subway cars, fire stations and libraries. It was only the Court system that was given enough money to satisfy all its identified physical needs.23   There were those who questioned the city’s “record infusion of money into court construction” — though no one said the court projects were not necessary.

Glenn Pasanen, director of City Project, a nonprofit budget monitoring organization, citing a 1998 study by Comptroller Alan G. Hevisi, said that “It makes no sense to satisfy 100 percent of court capital needs when you are satisfying less than half of educational needs.” The Hevisi study said that schools’ construction needs were only met by about 44 percent. “It’s yet another signal that the Mayor is more interested in criminal justice rather than investing in schools and kids where there is a societal and economic return.”24

On the other hand, there were others who noted even more money could be spent on the new state courts. Guiliani’s criminal justice coordinator, noted that “It ain’t no federal courthouse” referring to the 330 Jay Street courthouse project in Brooklyn, comparing it to the Federal Courthouse at Foley Square which features “exotic wood paneling, private kitchens and showers.”25

In response to criticism the money could have been spent on schools, Judge Jonathan Lippman said, “if you don’t have a justice system that works, you don’t have anything in these other areas, whether it be schools or social services… without a justice system that is respected, society doesn’t function.”26  I’d venture to guess that Dickens would agree. The law must not be a ass.

There was no question as to the need to improve the Courthouse facility, however, there were great concerns as to where those needing to access justice, might park their cars. A suggested benefit of this so called “problem” for the community came from Janet Barkan, the Executive Director of the Jamaica Center Business Improvement Association, “Hopefully more court employees will be shopping in the stores now that they’re going to be on the avenue. Parking is difficult.”  John Cairns, the Clerk of the Queens Family Court, in 1999, agreed that parking “is an obvious concern.”27

Aside from the building construction, judicial pay and parking concerns, the many other issues, identified by Dickens, still live on and are still chronicled in the 21st century Family court.
The New York City Family Court was reported to have 47 Judges and handled 245,000 cases a year in 2012.28  Judge Simeon Golar  whose critical writing on the court was profiled in an earlier installment in this series, passed away in 2013.30  I suspect he still would not approve of this math — that’s well over 5,000 cases per judge per year. An awesome number from any perspective, in any century or decade.

So what is to be expected in the next fifty years? Dickens said we were going too fast and missing something –Simeon Golar said the same thing, in another way, in another century. Are we still missing something? There is a new building in which to discuss family problems; unfortunately, many people still have many family problems which still need to be addressed by a court system.

Laura Duncan, an attorney waiting in a Queens Family Court first floor intake courtroom, for a case to be called, was asked by a New York Times reporter, in 2012, for her views of the festivities in the Courtroom. Ms. Duncan was quoted to say, in the fiftieth year of the Family Court, that “this is real life.”31

That was Dickens goal — to portray the real life of Dickens’ England. We are still chronicling that real life in the Family Court of New York City, and probably will continue to do so as we seek solutions to the problems that always come with real life. The problems are not new, but in a fair society, we are always seeking new solutions. The pursuit of those solutions now continues — with a new Mayor who appears to know that the problems of Dickens’ England continue in twenty-first century New York City.

Mark www.huffingtonpost.com, “Bill De Blasio sworn in as New York Mayor, January 1, 2014
2 reference to quote by Martha Zelman, Esq., President of the Queens County Women’s Bar Association in 1964, as reported in the QCBA Bulletin, Trials and Tribulations, footnote 19, Volume 76, no.2, November 2012
3 en.wikipedia.org  Claire Shulman, January, 2014
4 Serant, Claire, Court’s Moving, Daily News, June 1, 1995.
5 id.
6 id.
7 id.
8 Serant, 1995, id.
9 id.
10 Serant, Claire, “New Courthouse’s Caveat”, Queens, Your Neighborhood, The Daily News, Sunday March 28, 1999
11 Salermi, Jim, “State of the Art Facility to Replace Outmoded Building,” The Queens Chronicle, June 24, 1999
12 Salermi, id.
13 id.
14 Salermi, id.
15 Selemi, id.
16 lipton, eric, “halls of justice going up all over; new york city nears a peak in its courthouse building boom, The New York Times, December 5, 2000.
17 id.
18 id.
19 id.
20 this quote is more fully described in the first article in this series, QCBA Bulletin, vol 76, no. 1, October 2012, “Trials and Tribulations.”
21 Lipton, Eric, Supra.
22 id.
23 lipton, id.
24 lipton, id.
25 lipton, id.
26 id.
27 Serant, 1999, id.
28 www.thenewyorktimes.com, Glaberson, William, “For Top Judge, Tough Lessons on Family Court Bench, March 28, 2012.
29 QCBA Bulletin,vol 76, No 5, April 2013, “Trials and Tribulations.”
30 www.thenewyorktimes.com, “Simeon Golar, Who Fought for Public Housing, Dies at 84, August 13, 2013.
31 Glaberson, Supra.

What Happened to the Attorney-Client Privileged Communication And What You Should Do About It. By Paul E. Kerson

Once upon a time, in a democratic country called the United States, in a State called New York, there were seven people in one’s life one could count on to keep  secrets: spouse, attorney, medical professional, clergy member, psychologist, social worker and rape crisis counselor. Library records were also to be kept confidential.

New York guarantees this to every one of our citizens, residents and visitors alike in Civil Practice Law and Rules (CPLR) Sections 4502, 4503, 4504, 4505, 4507, 4508, 4509 and 4510.  These statutes are a bulwark of freedom. It means a person can unburden himself or herself and not fear prosecution, embarrassment or intimidation. These statutes are a key factor in the physical and mental health of our people.

Washington, DC has the same attorney-client privilege set forth in the DC Rules of Professional Conduct, Rule 1.6.

Now comes something called the “National Security Agency,” a Federal Government entity paid for with our tax dollars that has clearly been designed to make us feel as insecure as possible.

The Feb. 15, 2014 edition of The New York Times reported the following article by reporters James Risen and Laura Poitras, “Spying by N.S.A. Ally Entangled U.S. Law Firm”. It seems that the Australian counterpart of the NSA, the Australian Signals Directorate (ASD), told SUSLOC (the Special US Liaison Office Canberra of the NSA) that it had intercepted communications between the Indonesian Government and its American law firm, Mayer Brown of Chicago, Ill.

It seems that the Indonesian Government is involved in a trade dispute with the US Government over trade in cigarettes and shrimp. At the World Trade Organization (WTO) in Geneva, Switzerland, the Indonesian Government is protesting a US Government ban on the sale of imported Indonesian clove cigarettes. The US Government, in turn, is protesting that Indonesia is selling shrimp at below-market prices.

Indonesia retained the Washington, DC office of Mayer, Brown to represent its interests adverse to those of the US Government at the WTO.

The Times interviewed Duane Layton, Esq. and Matthew McConkey, Esq. of the Washington office of Mayer Brown. Neither had any concrete evidence that they had been spied on by the Australian ASD or the US NSA. However, upon being informed that this was the case by The Times, Mr. Layton said, “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age.”

The Times found out about the US Government’s blatant violation of the DC Rules of Professional Conduct, Rule 1.6 and New York CPLR Section 4503 because of the allegedly “unlawful” revelations of Edward Snowden, a former NSA contractor. Snowden made a lot of NSA material public, and is now a “fugitive”.

So, the wise lawyer who wishes to uphold the integrity of our profession against an apparent policy of blatant US Government interference must now adopt the following stringent safeguards:

1. Do not discuss any sensitive matter with any client over the telephone or by fax.

2.  Do not put any confidential client information in any e-mail whatsoever.

3. Use sealed US Mail whenever a few days waiting time is permissible. (It almost always is. There is very little we do that absolutely must be delivered today. The rush for immediacy is because people have been reduced to the level of infants by “technology”.  It is still a felony for any Government agent or anyone at all to open U.S. Mail not addressed to them. See 18 U.S. Code Sec. 1708).

4. If the confidential communication must be there immediately, hire a messenger service you can trust.

5. If the confidential communication must be there tomorrow, use US Mail Next Day Delivery, Federal Express, UPS or other sealed overnight carrier.

6. Best of all, when discussing anything sensitive, have the client come into your office and close the door.

These measures must be taken at once. The Law Itself will not help us. The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA) permits the Federal Government to acquire “foreign” intelligence information by authorizing surveillance of individuals who are not “U.S. persons” who are reasonably believed to be “outside the U.S.” See 50 U.S. Code Sec. 1881a.

But what happens when such surveillance picks up attorney-client communications from inside the U.S. by American lawyers? The U.S. Supreme Court ruled 5-4 that this is perfectly okay. See Clapper v. Amnesty International, 133 S.Ct. 1138 (2013).  In Clapper, the U.S. Supreme Court reversed the U.S. Court of Appeals, 2nd Circuit, here in New York. See 638 F. 3d 118 (2d Cir. 2011).

Our Second Circuit gave us some hope:

“The plaintiffs’ uncontroverted testimony that they fear their sensitive electronic communications being monitored and they have taken costly measures to avoid being monitored – because we deem that fear and those actions to be reasonable under the circumstances of this case – establishes injuries in fact that we find are causally linked to the allegedly unconstitutional FAA. We therefore find that plaintiffs have standing to challenge the constitutionality of the FAA in federal court.” See 638 F. 3d at 150.

Sadly, the U.S. Supreme Court took this hope away 5-4.

What did Mayer Brown do?  The whole world now knows they allowed their most sensitive attorney-client communications to be monitored by the Federal Government. This is not exactly good for business.

Well, a firm of that size is not without resources. Two days after The Times broke this story of Federal Government trampling on the attorney-client privilege, Mayer Brown had this to say in the Feb. 17, 2014 edition of The Chicago Tribune:

“Mayer Brown takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.” (See Kim Geiger, “Chicago-based law firm responds to report of NSA spying”. The Chicago Tribune,  Feb. 17, 2014

We in Queens County, New York have the most international clientele in the world. People reside in our county who were born in virtually every other country. And many have significant dealings in the “old country,” all 196 of them (unless Taiwan does not count, in which case there are 195).  They come to Queens County because we at Sutphin Boulevard (the Capital of the Universe) provide them with outstanding legal representation for whatever dispute they might find themselves in (among other reasons, but surely it is not the scenery).

U.S. Supreme Court to the contrary notwithstanding, we must redouble our efforts to live by and enforce CPLR Sec. 4503, the Attorney-Client privilege. Please follow what we should now call Duane Layton’s 6 Rules for the Protection of the Attorney-Client Privilege listed above. After all, as the first attorney whose confidential communications were revealed as hacked by the Federal Government, we are all well advised to follow his assessment of the condition we are now in due to Government abuse of “technology”: “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age.”