Judiciary Law 487, Sexual Abuse and Advocacy
A shockingly large number of educational institutions in New York and all over the country are now facing their history of teacher-student sexual abuse. Horace Mann, Brown & Nichols, Poly Prep. Each have had their past investigated, and in many instances come up short.
What of the law firms that represented these schools? Are they responsible for wrongful acts, especially in the nature of deceit? If they forcefully defended the schools, can they now be held to have violated Judiciary Law 487?
In Zimmerman v. O'Melveny & Myers, LLP we see the competing arguments. As reported in today's New York Law Journal, by Andrew Keshner " O'Melveny & Myers, fighting to dismiss a state suit brought by alumni of an elite Brooklyn prep school that was represented by the firm in a prior federal action, said the alumni cannot sue the firm with "previously abandoned" claims of purported deception on the courts.
In December, 10 Poly Prep Country Day School alumni and two former summer camp participants settled a closely-watched Eastern District lawsuit stemming from alleged decades of abuse by the school's football coach, Philip Foglietta, now deceased, and the school's concealment of the actions.
Less than a year after the confidential settlement, many of the same plaintiffs sued O'Melveny and Jeffrey Kohn, the New York managing partner, in Manhattan Supreme Court. Pointing to state Judiciary Law §487—which forbids attorneys' "deceit or collusion, with intent to deceive the court or any party"—the alumni said the defendants should be held accountable for "their grievous and oft-repeated falsehoods" when defending the school in the federal suit (NYLJ, Aug. 15)."
""After settling an earlier federal court litigation on confidential terms, Plaintiffs are now seeking more money by bringing a new action in which they repeat spurious allegations that the defense lawyers made 'misrepresentations' in the earlier action. Plaintiffs made—and then voluntarily abandoned—the identical allegations in the earlier federal proceedings. Plaintiffs' improper attempt to revive in a new action the allegations they previously abandoned fails as a matter of law for several reasons," O'Melveny said in Zimmerman v. Kohn, 652826/2013."