In a long-running professional negligence lawsuit between ex-spouses—one of them a lawyer sued by his ex-wife over his allegedly negligent representation of her in a high-stakes arbitration—a state appeals court has ruled that the ex-husband's former law firm cannot subpoena files from other attorneys his ex-wife retained in efforts to vacate the arbitration award.

Again entering the nine years-and-running lawsuit between Virginia Henneberry and ex-husband Leon Borstein, an Appellate Division, First Department panel ruled Thursday that “the record does not establish that plaintiff [Henneberry] affirmatively waived her attorney-client privilege with counsel in the action to vacate the arbitration award and in the appeals arising therefrom.”

The First Department's decision has been entered in the Manhattan Supreme Court docket of the Henneberry-Borstein lawsuit as entry No. 353.

And it was 2010 when Henneberry lodged her professional negligence and breach-of-fiduciary-duty lawsuit against several defendants: her ex-husband Borstein, and a now-former law partner of his and their two-person Manhattan firm, Borstein & Sheinbaum, according to court records.

In that complaint, Henneberry alleges that the two-man firm, which no longer exists, unfaithfully represented her in an arbitration spanning 13 months, with 13 witnesses, and more than 200 documents in evidence focused on some $2.5 million in severance payment that was at stake for her.

The complaint further states that the arbitration concerned Henneberry's allegations that ING Group had fired her and thereby breached a five-year employment contract it had with her.

In her action against ex-husband Borstein, Henneberry further alleges that Borstein and his former law partner had been conflicted, and that they breached duties to Henneberry in myriad ways. In the 2010 complaint, Henneberry asks for several million dollars in total compensatory and punitive damages.

As the suit has continued, the defendants have attempted to subpoena records from his ex-wife's lawyers from other matters—including from her lawyers in the past divorce action between her and Borstein, which Henneberry brought in 2006.

On Thursday, the unanimous First Department panel reversed Manhattan Supreme Court Justice Charles Ramos' 2018 decision, to the extent that Ramos had denied Henneberry's motion for a protective order and to quash subpoenas duces tecum served by the defendants on the attorneys who represented her in an action to vacate an arbitration award and in the subsequent appeals.

“The record does not establish that plaintiff affirmatively waived her attorney-client privilege with counsel in the action to vacate the arbitration award and in the appeals arising therefrom,” the panel of Justices David Friedman, Barbara Kapnick, Ellen Gesmer and Cynthia Kern wrote.

They then added that “a review of the complaint shows that plaintiff's claims do not need to be proved through the files from her counsel in the action to vacate the arbitration award and in the appeals arising therefrom.”

Moreover, wrote the justices, the “defendants have not countered that showing or established that those files are vital to their defenses.”

Andrew Kowlowitz, an attorney at Furman Kornfeld & Brennan, represented two of the defendants in the appeal and could not be immediately reached.

Douglas Capuder of Capuder Fazio Giacoia represented Henneberry. He declined to comment on Friday.