We wrote about this case last week. Today the NYLJ writes an article. What is this all about, and is it an earthquake in the Judiciary Law § 487 world? Joel Stashenko writes: “A client dissatisfied with her attorneys’ work in a personal injury case cannot bring a legal misconduct claim under state Judiciary Law because her lawyers were not also convicted of a crime in connection with her representation, a federal magistrate judge concluded.
Western District Magistrate Judge Hugh Scott said he agreed with the defense’s contention that a claim under Judiciary Law §487 cannot succeed without a lawyer’s conviction on a misdemeanor offense contained in the same statute for deceiving or defrauding clients.
The statute also provides for the awarding of treble damages against the attorney found responsible for the misconduct.
Scott’s report and recommendation came in Bounkhoun v. Barnes, 15-cv-631A. District Judge Richard Arcara is presiding over the case.”
All true, and Anita Bernstein, a professor at Brooklyn Law and a serial commentator on JL § 487 politely calls it “an outlier.”
Since the statute was enacted in its prior forms, no one from 1265-2017 has suggested that a criminal prosecution was a condition precedent to treble damages. Courts have inserted “egregious” or “chronic, extreme pattern of legal delinquency” to make application of the statute really difficult, but the question of a required criminal conviction has never been heard. In fact, it seems unlikely given that there has been significant debate on whether a client is required to bring the 487 claim within the same lawsuit, or may bring it in a separate lawsuit.
More later.