Judiciary Law 487 claims are difficult.  They are disfavored, as our discussions over the past three weeks has shown.  Appellate Courts appear (but do not explicitly state) to require a higher standard of proof, and have used the word “clear” in their descriptions of the standard of JL 487 proofs, bringing to mind a “clear and convincing” standard rather than a “preponderance of the evidence” standard.  In any event, proof of a JL 487 claim is even more difficult in a bankruptcy setting as Hahn v Dewey & Leboeuf Liquidation Trust  2015 NY Slip Op 31481(U)  August 3, 2015
Supreme Court, New York County  Docket Number: 650817/2014  Judge: Eileen Bransten shows.

“In addition, the proposed attorney misconduct claim is not legally cognizable. Pursuant to Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … [i]s guilty of a misdemeanor, and … forfeits to the party injured treble damages, to be recovered in a civil action.” 11 [S]ection 487 is not a codification of a common-law cause of action for fraud. Rather, section 487 is a unique statute of ancient origin in the criminal law of England. The operative language at issue – ‘guilty of any deceit’ – focuses on the attorney’s intent to deceive, not the deceit’s success.” Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 (2009). In the proposed attorney misconduct claim, plaintiffs allege that they did not discover, nor could they have discovered, the alleged fraud until they read Confidence Games in 2014. Plaintiffs contend that the information in the book leads them to believe that evidence exists regarding LeBoeuf, Sidley, and Proskauer’s commission of actual fraud with regard to the tax shelter advice each rendered to plaintiffs in the early 2000’s. Plaintiffs further maintain that the defendant law firms knowingly and fraudulently concealed the existence of a conflict of interest between their interests and plaintiffs’ interests, in breach of their respective fiduciary duties owed plaintiffs, in order to receive additional exorbitant legal fees from plaintiffs. Plaintiffs contend that these defendants rendered improper legal advice regarding the plaintiffs’ eligibility for the safe harbor protection afforded by IRC § 6707, because they knew that, by the time that their legal malpractice and fraud were discovered, the relevant statute of limitations would have passed and that, therefore, they would be safe from legal action. As discussed at length above, in Confidence Games, the authors analyze the tax shelters of the late 1990s and early 2000s and do not specifically reference the NPL Program or any tax advice rendered by LeBoeuf, Sidley, or Proskauer with respect to that tax strategy. The information in Confidence Games does not constitute new evidence. Plaintiffs’ duty to inquire further was triggered by the IRS investigation into the NPL Program, and the lawsuits filed against plaintiffs NPL Program investors. The claim is also without merit because it is not properly brought in this action. Section 487 of the Judiciary Law applies only where the alleged deceit forming the basis of the claim occurs during the course of a pending judicial proceeding. See, e.g., Meimeteas v. Carter Ledyard & Milburn LLP, 105 A.D.3d 643, 643 (1st Dep1 t 2013); Costa/as v. Amalfitano, 305 A.D.2d 202, 203-204 (1st Dep’t 2003). Here, the alleged misconduct occurred well before commencement of this litigation. Finally, the attorney misconduct claim is time-barred. An attorney misconduct claim is subject to a six-year limitations period. See Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 15 (2014); CPLR § 213(1). The last act or omission of attorney misconduct by any of the movants alleged by plaintiffs occurred in 2003, more than ten years prior to commencement of this action. “