Sexual Abuse and Judiciary Law 487

Legal malpractice, and its cousin deceit might be found anywhere attorneys tend problems.  One fairly startling setting is the Poly Prep sex abuse litigation.  Like the similar Horace Mann sexual abuse litigation, there are numerous claims of concealment and lying. Andrew Keshner writes in today's New York Law Journal that former students have filed a Judiciary Law 487 claim against Poly Prep's outside counsel O'Melveny & Myers.

'Former students who settled a lawsuit alleging a prestigious private school in Brooklyn covered up a football coach's years of sexual abuse are now suing the school's outside counsel at O'Melveny & Myers for allegedly trying to "deceive" the court with "fraudulent evidence" and "materially false and fraudulent statements."

Naming O'Melveny and Jeffrey Kohn, managing partner of the firm's New York office, as defendants, the action argues they "should not be allowed to escape sanction for their grievous and oft-repeated falsehoods."

The lawsuit, Zimmerman v. Kohn, 652826/2013, was filed Aug. 11 in Manhattan Supreme Court (See Complaint). It demands that, in addition to other things, O'Melveny reimburse the plaintiffs for $2 million in legal fees expended to achieve a confidential settlement. In addition, the plaintiffs are seeking that all fees paid to O'Melveny by Poly Prep Country Day School be turned over to the plaintiffs.

O'Melveny scoffed at the claims.

"The underlying case was concluded nine months ago with a settlement voluntarily entered into by the plaintiffs. These claims are completely baseless and without merit," the firm said in a statement.

The current suit arises from a lawsuit 10 alumni and two former summer camp participants filed against the school and its officials in 2009 for allegedly concealing abuse that occurred from 1966 to 1991 by coach Philip Foglietta. The coach died in 1998 after working 25 years at the school.

After Eastern District Judge Frederic Block (See Profile) ruled last August that some claims could proceed in Zimmerman v. Poly Prep Country Day School, 09-cv-4586, the parties reached a confidential settlement in December. Philip Culhane, a partner at Simpson Thacher & Bartlett, was among the plaintiffs (NYLJ, Aug. 30, 2012 & Dec. 28, 2012).

The current suit's claims include a violation of the state's Judiciary Law §487, which prohibits attorney misconduct toward a court that includes "deceit or collusion, with intent to deceive the court or any party."

It was brought by 11 of the 12 plaintiffs, except for Culhane, and especially targets the firm's defense of the school with a focus on Kohn and the firm's description of an internal probe the school conducted in 2002."
 

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