Today’s New York Law Journal has an interesting article which discusses the Pre- and Post-Amalfitano v. Rosenberg status of Judiciary Law § 487 cases.  The conclusion of Herrington and Miller is that JL § 487 cases are on the rise, and courts are less willing to dismiss them at the beginning of the case.  They were kind enough to cite our NYLJ article on Judiciary Law § 487 which appeared there on September 25, 2014.

From their article: “Although cases and success rates for claims invoking the attorney misconduct statute, N.Y. Judiciary Law §487, have risen—even doubled—over the past five years, there appears to be no change in the severity of misconduct required for an actionable claim. Given the clarification in 2009’s seminal Amalfitano v. Rosenberg, 903 N.E.2d 265, 266 (N.Y. 2009) that even attempted deceit was actionable, the post-Amalfitano consistency in the severity standard is arguably surprising and provides some comfort. It appears, keeping with the history of §487, that New York jurists will properly allow these claims to survive motions to dismiss and proceed to discovery only in true outlier cases. What could otherwise be inconsistent with the advocate’s duty to zealously advocate for her client is properly reserved for these circumstances.
In New York, an attorney who intentionally deceives a court or party during a judicial proceeding, and causes injury by that action, may be guilty of a misdemeanor, subject to penal law punishments, and liable for treble damages. N.Y. Jud. Law §487 (McKinney 2005).
Section 487 has been on the books for almost two centuries. See Amalfitano v. Rosenberg, 428 F.Supp.2d 196, 210 (S.D.N.Y. 2006), aff’d 572 F.3d 91 (2d Cir. 2009) (tracing the statute’s origin to the 1836 Revised Statutes of New York Sections 69 and 70, but noting the statute in its current form was enacted in 1965). The past five years have seen an increase both in the number of filings and the likelihood of Section 487 claims to survive motions to dismiss.”

“Commentators predicted that, as a result of the Amalfitano decision, plaintiffs would likely prevail with their Section 487 claims where they had not before.¹ An (admittedly limited) empirical analysis shows these prognostications to have been correct. We examined 25 cases in both the pre-and post Amalfitano era. Both the rate of Section 487 filings and the ability of Section 487 plaintiffs to get past the pleadings stage appear to have increased markedly post-Amalfitano. Attorneys litigating in New York state and federal courts would be well-advised to keep Section 487 risk in mind both in litigating and settling cases where a vengeful opponent has a powerful tool to switch targets from their opponent to its counsel.”