Legal Malpractice

Judiciary Law 487 Targets Attorneys in Legal Malpractice

By (Andrew Lavoott Bluestone)

Today's Outside Counsel Column in the New York Law Journal is "The Use of Lawyer-Targeted Judiciary Law 487.  It discusses the 740 year history of what may be the oldest statute in Anglo-
American jurisprudence, and certainly the oldest to affect attorney conduct in and out of court.

As a treble damage statute, it has been sparsely used in its long history, and as as the article argues, may be trending higher.  This month's The Court of Appeals decision  in Amilfatano v, Rosenberg will likely boost litigator's awareness of the statute. 

"As the District Court correctly observed, however, Judiciary Law § 487 does not derive from common law fraud. Instead, as the Amalfitanos point out, section 487 descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. The relevant provision of that statute specified that

"if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King's Court, or consent [unto it,] in deceit of the Court [or] to beguile the Court, or the Party, and thereof be attainted, he shall be imprisoned for a Year and a Day, [*3]and from thenceforth shall not be heard to plead in [that] Court for any Man; and if he be no Pleader, he shall be imprisoned in like manner by the Space of a Year and a Day at least; and if the Trespass require greater Punishment, it shall be at the King's Pleasure" (3 Edw, c 29; see generally Thomas Pitt Taswell-Langmead, English Constitutional History 153-154 [Theodore F.T. Plucknett ed, Sweet & Maxwell, 10th ed 1946]).
Five centuries later, in 1787, the Legislature adopted a law with strikingly similar language, and added an award of treble damages, as follows:

"And be it further enacted . . . [t]hat if any counsellor, attorney, solicitor, pleader, advocate, proctor, or other, do any manner of deceit or collusion, in any court of justice, or consent unto it in deceit of the court, or to beguile the court or the party, and thereof be convicted, he shall be punished by fine and imprisonment and shall moreover pay to the party grieved, treble damages, and costs of suit" (L 1787, ch 36, § 5).

In 1836, the Legislature carried forward virtually identical language in section 69 of the Revised Statutes of New York, prescribing that
"[a]ny counselor, attorney or solicitor, who shall be guilty of any deceit or collusion, or shall consent to any deceit or collusion, with intent to deceive the court or any party, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine or imprisonment, or both, at the discretion of the court. He shall also forfeit to the party injured by his deceit or collusion, treble damages to be recovered in a civil action" (2 Rev Stat of New York, chap III, art 3, § 69 [1836]).
 

Full post as published by New York Attorney Malpractice Blog on March 09, 2009 (boomark / email).