Chandy Bounkhoun, Plaintiff,  v.  Steven E. Barnes, Esq. et al., Defendants. No. 15-CV-631A.
United States District Court, W.D. New York.  April 11, 2017 is a stunning new decision from the Western District of New York.  Magistrate Scott takes us from Medieval England to colonial times to look at the the criminal law underpinnings of Judiciary Law § 487.

“Plaintiff Chandy Bounkhoun suffered permanent blindness in one eye when she was struck by a rock thrown from a lawnmower that her landlord was using. Plaintiff retained defendants Steven E. Barnes, Esq., Ross M. Cellino, Esq., Christopher D. D’Amato, Esq., and Cellino & Barnes, P.C. to pursue a personal injury action against the landlord. The case went to trial and ended in a defense verdict; under the terms of a high-low agreement, plaintiff was awarded $25,000 minus costs and fees.”

“N.Y. Jud. L. § 487 (Westlaw 2017). “[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. . . . Further, to limit forfeiture under section 487 to successful deceits would run counter to the statute’s evident intent to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.” Amalfitano v. Rosenberg, 903 N.E.2d 265, 268 (N.Y. 2009) (“NY Amalfitano“) (citation omitted). The operative language from Amalfitano is the same operative language that plaintiff invoked in paragraph 59 of the amended complaint, and it merits a closer look. What Section 487 proscribes, and what remedies it makes available, will help the Court determine the sufficiency of Count III.”

“The first term in Section 487(1) that requires closer examination is the term “deceit.” New York’s Judiciary Law does not define the term as used in any of its sections, including Section 487. That said, the New York Court of Appeals in NY Amalfitano traced the use of the term “deceit” in Section 487 all the way back to Magna Carta and noted the consistent understanding of that term as applied to attorneys representing clients in litigation. Specifically, the New York Court of Appeals quoted with approval two principles from an old Appellate Division case that interpreted a predecessor statute with substantially identical language.[3] The first principle is that the prohibition against deceit in Section 487 and its ancestors applies to attorneys, “a peculiar class of citizens, from whom the law exacts a reasonable degree of skill, and the utmost good faith in the conduct and management of the business intrusted to them . . . To mislead the court or a party is to deceive it.” NY Amalfitano, 903 N.E.2d at 268 (ellipsis in original) (quoting Looff v. Lawton, 14 Hun 588, 589 (N.Y. App. Div. 1878)). The second principle is that “deceit” for purposes of Section 487 is more expansive than the meaning that developed under the common law. Since the New York Court of Appeals embraced the understanding of “deceit” from Looff, a full passage from that case is appropriate here. In Looff, the plaintiffs owned a parcel of real estate that they wanted to sell. They retained an attorney, who in short told them that their title was bad and that the sale would require judicial proceedings that netted the attorney a significant amount in costs and fees. The plaintiffs sued to recover the costs and fees, claiming that the attorney deceived them about the quality of their title. The trial court dismissed the case for failure to state a sufficient cause of action, but the Appellate Division reversed. Here is what the Appellate Division said about how the predecessor in question operated to expand the concept of attorney deceit beyond the bounds of the common law”

We will continue this tomorrow.