Judiciary Law § 487 is an ancient part of the common law, recently elevated from a mere statute by the Court of Appeals.  That being said, the First and the Second Departments have a major difference in an agreed upon definition.  Here, in Bill Birds, Inc. v Stein Law Firm, P.C.
2018 NY Slip Op 05743  Decided on August 15, 2018  the Appellate Division, Second Department reminds us that “deceit” is the operative word and “chronic, extreme pattern of legal delinquency” is mere surplusage.  The First Department has different requirements.

“The defendants represented the plaintiffs in a trademark dispute against Equity Management, Inc. (hereinafter EMI), and General Motors, Service Parts Operation (hereinafter GM). In 2006, the defendants commenced an action (hereinafter the underlying action) on the plaintiffs’ behalf against EMI and GM in the United States District Court for the Eastern District of New York, alleging breach of a trademark licensing agreement and fraud. The complaint alleged that EMI and GM misrepresented to the plaintiffs that they had an ownership interest in the licensed products which in fact they did not have. On March 31, 2008, the court in the underlying action granted the motion of EMI and GM to dismiss the action on the ground that the parties’ agreement required that disputes relating to the agreement be commenced in the federal or state courts in Michigan.

Thereafter, the plaintiffs commenced the instant action against the defendants asserting causes of action to recover damages for legal malpractice, breach of contract, fraud, and a violation of Judiciary Law § 487. In the complaint, the plaintiffs set forth two alternative theories of liability. Under the theory premised upon legal malpractice, the plaintiffs asserted that they had meritorious claims against EMI and GM, and solely due to the defendants’ negligence, they were unable to recover monetary damages in the underlying action because the defendants failed to commence an action in the proper forum, and the statute of limitations had run. The plaintiffs further alleged fraud and a violation of Judiciary Law § 487, in that the defendants misrepresented the merits of the underlying action to them and to the court in the underlying action, in order to induce the plaintiffs to retain the defendants’ services to prosecute a meritless action and pay legal fees.”

“Contrary to the defendants’ contention, the cause of action alleging a violation of Judiciary Law § 487 was not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Lauder v Goldhamer, 122 AD3d 908, 911; Sabalza v Salgado, 85 AD3d 436, 438).

Nevertheless, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law § 487 (see Dupree v Voorhees, 102 AD3d 912, 913). Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “intent to deceive the court or any party” (Judiciary Law § 487; see Schiller v Bender, Burrow, & Rosenthal, LLP, 116 AD3d 756, 759; Agostini v Sobol, 304 AD2d 395, 396). Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016[b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615; Armstrong v Blank Rome LLP, 126 AD3d 427Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law § 487 to recover the legal fees incurred.”