First, the joke:
“An engineer, a physicist, and a lawyer were being interviewed for a position as chief executive officer of a large corporation.The engineer was interviewed first, and was asked a long list of questions, ending with “How much is two plus two?” The engineer excused himself, and made a series of measurements and calculations before returning to the board room and announcing, “Four.” The physicist was next interviewed. Before answering the last question, he made many calculations through his University supercomputer, and also announced “Four.”The lawyer was interviewed last, and was asked the same questions. At the end of his interview, before answering the last question, he drew all the shades in the room, looked outside the door to see if anyone was there, checked the telephone for listening devices, and asked “How much do you want it to be?“
I have been an attorney for almost 20 years. Unfortunately, I have seen more than my share of attorneys who are not honest, at least in the process of litigation. For example, an attorney may allege facts that cannot be true because there are indisputable documents that prove the attorney is wrong. For most of us, that would be considered lying (especially if someone continues to make the same misrepresentations of fact after it is pointed out).
You may be surprised to know that in at least one state where I practice (New York) there is a law related to deceptive practices of lawyers which allows injured parties to collect damages. (All states have grievance procedures for filing a complaint about unethical conduct, and in some egregious cases, some states have funds to reimburse clients under certain circumstances at least in part for losses suffered through attorney misconduct.)
But this New York law (Judiciary Law §487) goes a step beyond and has some serious teeth. A violation of Judiciary Law §487 is a criminal offense with at least a potential for jail time for the lawyer. In addition, a party who is injured by deceptive conduct covered by this law and who can prove it in court, is entitled to triple damages.
What this means is that if you can prove a violation of Judiciary Law §487 (a big if), and if you can prove damages (an even bigger if), the court will triple the damages that are to be paid to you. If you proved $500,000 in damages, the court would award $1.5 million.
This blog is not meant to be a detailed analysis of the law, but just to alert you to its existence. Because of its complexities and the way that it has been interpreted by courts, you definitely should seek the advice of legal counsel if you believe a New York attorney may have violated the law.
Here is the current (as of February 2013) text of the law (Judiciary Law §487):
§ 487. Misconduct by attorneys. An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or
collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client’s suit with a view to his own gain; or,
wilfully receives any money or allowance for or on account of any money
which 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.
What is also very significant about this particular law is that you could potentially bring an action against an attorney who has not represented you. In a legal malpractice action, there has to be an attorney-client relationship. In an action based on Judiciary Law §487, any party who is injured by an attorney during court proceedings has the potential to bring this action.
I will be writing future blogs with more details about the law, but for me one of the most interesting things about Judiciary Law § 487 is its long history. The language in this particular statute (which was originally passed in New York in 1807) can be traced all the way back to the earliest days of our legal heritage. In 1275, only 60 years after the signing of the Magna Carta, the English Parliament enacted the first provision of law regulating the professional conduct of counselors at law in language that is almost but not quite identical to the current law:
“if any Serjeant, Pleader or other, do any manner of Deceit or Collusion in any King’s Court or consent in deceit of the Court or beguile the Court or the Party and thereof be attainted, he shall be imprisoned for a year and a day and from thenceforth shall not be heard to plead in that Court for any Man.”
Until recently, there was very little case law on this particular statute in New York. That all changed in 2009 when the New York Court of Appeals decided the case of Amalfitano v. Rosenberg, 12 NY 3d 8 (2009) and “dramatically changed the traditional understanding of New York Judiciary Law § 487.”
The Amalfitano case re-establishes that even an attorney’s unsuccessful attempts at deception, when directed at a court, may be actionable an subject to triple damages.
In future blog posts, I will talk about specific cases, but for now just remember that at least in New York whenever talking to an attorney about malpractice, you should also find out if you have a viable claim under Judiciary Law §487.
Author: Howard Altschuler
(Click here for a brief summary of my other blog posts on various legal malpractice related issues)
(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)
Copyright (c) 2013 By Howard Altschuler, All Rights Reserved