Judiciary Law § 487 is (perhaps) the oldest statute in existence here in New York. It descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. It has been in effect from the founding of our country. The statute reads:
“Misconduct by Attorneys
An attorney or counselor who:
Is guilty of any deceit of collusion, or consents to any deceit or collusion, with intent to deceive the court or any party, or,
- Wilfully delays his client’s suit with a view to his own gain, or wilfully receives amy money or allowance for or on account of any money he has not laid out, or becomes answerable for,
is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.”
We plan to review the 30 JL § 487 cases decided in 2016. Here are the first three (by date):
- Melcher v Greenberg Traurig LLP 2016 NY Slip Op 00274 [135 AD3d 547] January 19, 2016 Appellate Division, First Department
This is likely the most important JL 487 case of the year, and it was decided first. The Appellate Division, First Department determined that a JL 487 case may be brought in a separate action, rather than in the specific action where the deceit is alleged to have taken place. This practice is not “claim-splitting” even when the question of deceit was raised in the underlying case. The central question is whether the JL 487 claim seeks to “collaterally attack any prior adverse judgment” In Melcher the court determined that no collateral attack was shown.
2. Klein v Rieff, 2016 NY Slip Op 00482 [135 AD3d 910] January 27, 2016 Appellate Division, Second Department where the AD reversed the dismissal of the JL 487 claim and reinstated it. The claim was that an attorney knowingly submitted a witness statement containing material misrepresentations and thereafter knowingly submitted false affirmations and false affidavits. The attorney was unable (on summary judgment) to show that no damages were suffered.
3. O’Neal v Muchnick Golieb & Golieb, P.C. 2016 NY Slip Op 30268(U) February 11, 2016 Supreme Court, New York County Docket Number: 154898/2013 Judge: Shlomo S. Hagler Here the supreme court judge determined that factual evidence of “chronic and extreme pattern of legal delinquency” was required. As Professor Anita Bernstein recently cataloged in her comprehensive Outside Counsel column, the First Department has inserted this particular phrase, although none of the other Appellate Divisions agree, and the phrase nowhere appears in the statute. She asks:
“Yet while all the adjectives in the statute are either neutral or plaintiff-favoring, one court—the Appellate Division, First Department—has written adjectival criteria that make it hard for plaintiffs to win. There’s more: First Department cases say that plaintiffs must show a “pattern” of attorney misconduct, and assert that redress for this wrong must be “not lightly given.”
These hurdles do not appear anywhere in the statute. Judiciary Law §487 codifies a crime and declares a right of action for what it calls “the party injured,” a capacious category. Intent to deceive a party to litigation suffices for liability, no repetition or pattern needed. Section 487 omits defenses, excuses, and mitigating conditions that make life easier for defendants.
“Chronic, extreme,” “egregious.” Redress for injured people “not lightly given.” The “pattern” criterion. Where did the First Department’s discouraging-to-plaintiffs words come from?”