A Primer on Judiciary Law 487
The legal concept that became known as Judiciary Law 487 has three elements: The attorney or counselor-at-law has practiced deceit or collusion with intent to deceive the court or any party; 2. It was pursued by inducing from a party an undertaking or agreement for or on account of his business as attorney or counselor; 3. There was a positive and specific agreement to charge, or the attorney or counselor-at-law knowingly took, received, or agreed to take or receive a greater compensation than allowed by law for his services in practice as attorney or counselor-at-law in such action or proceeding. It is well settled that Judiciary Law 487 imposes criminal liability on attorneys whose fraudulent conduct (i) interferes with the administration of justice and (ii) is performed willfully and knowingly to deceive the court or a party." Judiciary Law 487 has existed in some shape or form since at least 1787. In that year , in Rylander v Hilton (1787) 1 Sams 404, English Parliament enacted the precursor to Judiciary Law 487, making it a crime for any attorney "to pretend a concern for any cause or effects of it at court as a partiality or preference which shall be intended to over-reach justice" or for any counsel "to destroy or weaken a cause which by way of defense should or might be given at court by offering to make an unlawful compromise which he had power to defeat." The Rylander holding has been codified in present day Judiciary Law 487. Due to its antiquity, Judiciary Law 487 has been interpreted through the years using statutes that predate JL 487. Thus, the language of JL 487 must be interpreted in light of pre-existing English and New York common law.
Key Elements of an Attorney’s Dishonesty and Misconduct
The elements of what constitutes ‘deceit in the course of litigation’ for the purposes of Judiciary Law 487, to trigger attorney’s fees against individual attorneys seeking payment of alleged fees from the same client, were fleshed out by the New York’s high Court in Park Ave. Bank v. Bussi, 12 N.Y.3d 661 (2009).
The First Department has explained exactly what will constitute misconduct or deceit within the "in the course of litigation" for purposes of Judiciary Law 487, i.e.:
There are several kinds of misconduct which can amount to deceit in the ‘in the course of [litigation]: ‘(1) knowing misstatements made by an attorney with the intent of deceiving a court; (2) perjury by an attorney on behalf of a client; (3) collusion by an attorney and client to deceive the court (Paganelli, 19 AD3d at 469 (citations omitted)); (4) written legal submissions containing knowingly false statements; (5) submitting false affidavits (Barney, 281 AD2d at 295; Paganelli, 19 AD3d at 469); (6) making knowingly false allegations of fact; (7) knowingly advancing frivolous or unwarranted legal positions or arguments in a legal proceeding (Leitner v McGee, 16 AD3d 185, 187 [1st Dept 2005]; Paganelli, 19 AD3d at 469); and (8) the failure to correct a prior false statement when an attorney becomes aware of the facts [J. Michael Bloom, Attorneys as Parties: Judicial Regulation of Attorney Misconduct Under Judiciary Law Section 487, 34 Hofstra L Rev 183-214 (2005) at 192-193 (citations omitted) (2005)].
Misconduct may also ‘occur in non-litigation matters that subsequently lead to litigation,’ such as the use of ‘an adversary’s confidences to obtain an advantage in settlement negotiations’ (Leitner, 16 AD3d at 187; see Barnett, 281 AD2d at 295). Misconduct may also arise where an attorney participates in a client’s fraud on the court even if he does not personally engage in such conduct (see id.; Weissman, 51 NY2d at 722; Zubik v Liebowitz, 151 AD2d 658, 659 [2d Dept 1989]) or fails to correct a prior false statement (see Leitner, 16 AD3d at 187). (McKenzie v Mercy Housing & Services Corp., 96 AD3d 454, 455 [1st Dept 2012].
The Legal Ramifications of Violating Judiciary Law 487
The Penalties for Violating Judiciary Law 487 can be Severe. Penalties may include up to five years in prison and fines or sanctions.
The judiciary law is part of the penal code of New York, the state in which our firm is located. The Legal Professionalism Board is in charge of all legal professionals within the state, including attorneys and judges. If you have a complaint about a legal professional, the board is the first place you should contact. Judiciary Law 487 has two sections. One section requires honesty in the practice of law. It requires truthfulness to your clients, to the courts and to other legal representatives. You cannot bring a lawsuit in court if it is obvious that there is no reasonable chance of winning. The second section places strict penalties on attorneys who violate basic rules of conduct. Any attorney who deceives his or her clients, the court or other representatives has violated this law. The penalties can include disbarment, imprisonment and fines. Even if an attorney only commits a "minor" offense, the consequences can still be serious. Often, this law applies when an attorney neglects to tell clients important information, including the risks involved with a lawsuit or settlement.
Renowned Cases on Judiciary Law 487
Numerous cases have tested the limits of Judiciary Law 487, allowing courts to clarify its application and the standards for establishing misconduct by attorneys. In First American Corp. v. PricewaterhouseCoopers LLP, 154 AD3d 21 (1st Dept 2017), the court had to apply the statute to the conduct of an expert witness. There, the New York Supreme Court overturned on due process grounds the lower court’s finding that defendant’s expert witness had committed misconduct in violation of Judiciary Law 487 when he had already been reprimanded by a different court for violation of an ethical rule governing expert witnesses. In affirming the Appellate Division, the First Department noted that the testimony at issue had been prepared by defendant’s counsel, and not the expert himself, and that an expert witness could not be personally liable under Judiciary Law 487 for conduct involving communications with other experts alone. The First Department also noted that the sanction imposed upon the expert in the underlying action could be appealed to the Appellate Division, thereby providing an adequate remedy of law for the alleged misconduct at issue in that action. In Calderon v Miller, 418 F Supp 3d 39 (SDNY 2019), the Southern District of New York interpreted the statute to permit a former client to bring an attorney malpractice claim based on a violation of the statute. There, the attorney had represented the plaintiff both in the underlying personal injury action and in a foreclosure action, before abandoning the latter representation upon learning that he was being investigated for theft of funds that belonged to the plaintiff. In limiting the umbra of the statute to intentional wrongful acts involving deceit and misrepresentation, the court concluded that it was not necessary that the attorney’s actions in the foreclosure action (viz., reciting a false condition of the commitment) also violated separate rules of procedure or ethical rules in order for a former client to maintain a separate suit against the attorney for negligence under the statute. Rather, so long as the underlying act(s) amounted to deceit or misrepresentation, and so long as the plaintiff sufficiently alleged proximate cause as to that act(s), a separate malicious malpractice action may be sustained under the statute.
Defense Approaches for Allegations of Violation
In response to allegations of misconduct under Judiciary Law 487, courts have recognized a number of common defense strategies that may be employed by legal practitioners. These strategies may be based on the interaction between Judiciary Law 487 and other statutes. For example, plaintiff may seek to exclude attorney fees or the imposition of prejudgment interest against a defendant under Judiciary Law 487 on the ground that his attorney’s conduct is governed by a separate disciplinary statute such as Judiciary Law § 488. An argument may be made that because Judiciary Law 488 limits punitive damages in accounting fraud claims to $1,000, the punitive damages sought by the plaintiff in a case brought under 487 are barred as a matter of law. See George v. Omega Specialty, Inc. , 178 A.D.2d 391 (2d Dept 1991).
Also, a defendant may assert that the complaint fails to state a viable cause of action under § 487 because the paper contains no "false statement" as required under the statute. Accordingly, where an attorney’s closing statements are "laced with misleading inferences, omissions, and half-truths", and "fraudulently, maliciously or with gross negligence failed to correct" these errors, the defendant fails to state a viable claim under § 487. See Schwartz v. Comet Mechanical, Inc., 163 A.D.2d 420 (2d Dept 1990). Moreover, the Court has held that a complaint must specify with detail the manner in which the opposing attorney pursued fraudulent or deceitful means. See St. Paul Fire and Marine Ins. Co. v. Loris, 109 A.D.2d 826 (2d Dept 1985).
The Significance of Attorney Ethics and Compliance
As a cornerstone of the practice of law, legal ethics both drive prevention of Judiciary Law 487 violations and support compliance mechanisms among practitioners. Legal ethics shape not only the relationship an attorney has with clients and the court, but they also affect how the attorney relates to other parties involved in a case, including adversaries and non-lawyers.
The New York State Rules of Professional Conduct (the "Rules") emphasizes a lawyer’s duty to "be competent, legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." 22 N.Y.C.R.R. § 1200.0. As stated by the New York State Bar Association Committee on Professional Ethics, "[a] lawyer who does not undertake employment that the lawyer knows or should know is beyond the lawyer’s competence, or who undertakes immigration work for a client without complying with the Registration Rule, violates New York’s Rules of Professional Responsibility." New York State Bar Association Committee on Professional Ethics, Opinion 1044 (2015). Competence is the first prong of the Rules and reflects the need for an attorney to be knowledgeable of the law, prepared to represent a client, and to exercise independent judgment even when it results in the detriment of the attorney’s financial interest. Id.; see also NYSBA Committee on Professional Ethics, Opinion 912 (2018).
Professionalism is another essential component of the Rules, and was developed to "maintain the highest standards of the integrity of the profession." 22 N.Y.C.R.R. § 1200, Preamble. The New York State Bar Association’s Committee on Professional Ethics states that it is "committed to orderly and ethical resolution of disputes by fair and efficient means," and abhors "those who would abuse their clients or others for their own venal advantage." New York State Bar Association Committee on Professional Ethics, Opinion 1044 (2015). Repeatedly, this opinion reflects the fact that a lawyer’s duty is to the Court, not the client. Id.
Disputes between lawyers often arise due to one attorney’s unreasonable position. This can often result in stronger sanctions against the more obstinate lawyer. See Sutherland v. Kenwood, LLC, 2018 NY Slip Op 06631 (1st Dep’t Sept. 27, 2018) (reiterating that "a court is justified in imposing stronger sanctions upon the obstinate litigant and his attorney than on his adversary"). Thus, an attorney’s unreasonableness might be found to violate the Rules even in the absence of bad faith, defalcation, or intent "to injure or defraud" the opposing party. See Jesper v. Jeanty, 148 AD3d 465 (1st Dept. 2017). The bar for legal ethics, including those outlined in the Rules, helps to ensure that attorneys are not impeding the flow of justice and allowing the courts to do their job. It is in this vein that the Rules, as well as other codes of conduct and ethics, have been held as preventing attorneys from violating Judiciary Law 487 through excessive and obstinate behavior. Id.
What’s Ahead for Judiciary Law 487
As the legal landscape continues to evolve, so too does the interpretation and application of Judiciary Law 487. Even though this law has been in existence for over a century, its future remains a topic of debate and discussion among attorneys and legal scholars. One significant area of focus is the potential for reform in the application of Judiciary Law 487, both legislatively and judicially. The question remains whether the current provisions sufficiently address the modern legal environment or if they need to be updated to better protect both clients and the integrity of the legal profession. Some practitioners have called for clear standards or guidelines regarding what constitutes dishonest conduct, while others believe the existing framework is adequate.
Another area of future consideration involves the role of technology in the practice of law. As new forms of communication and information storage become more prevalent, how will these advancements impact the duties and obligations set forth in Judiciary Law 487? Will attorneys be held accountable for technological failures or their failure to keep abreast of the latest tools and systems? These questions will need to be answered as the legal field continues to adapt.
Moreover, the future of Judiciary Law 487 may involve more proactive approaches to ethical complications. Law schools may place an increased emphasis on teaching the tenets of this law, both in curriculum and extra-curricular activities. The integration of ethics training in alternative dispute resolution and interdisciplinary seminars may ensure that legal professionals have a well-rounded perspective as they approach their practice.
Further , young attorneys may prove to be pivotal in shaping the future of Judiciary Law 487. As new practitioners enter the legal field, they do so with varying outlooks regarding ethical conduct. Their perspectives could illuminate the need for different interpretations or applications of the law. Often, these young lawyers have never been affiliated with the older and more traditional "old boy" networks. As the older generation is replaced by younger generations, those who have never been involved in such tract will be determining how the legal community polices itself.
It is also not lost on members of the bar that ethical challenges exist beyond a single case or issue. In many instances, the failure of one law firm or partner may be routed in the actions of attorneys who were not directly responsible for the underlying misconduct. The indirect bad acts that drive people to settle cases "under the gun" also contribute to the perception that some attorneys are unethical. Addressing the role of those secondary parties in contributing to or failing to report misconduct may be an avenue for improving the public’s view of the legal profession. Moreover, this may lead to a future "easy button," which would allow for anonymous reporting without fear of repercussion.
The evolving nature of legal and technological advances makes it essential for the courts, bar associations, and law schools to frequently revisit the subject to determine whether it is meeting the challenges of the day. While Judiciary Law 487 provides a solid foundation for accountability in the legal profession, only time will tell how this critical component of legal ethics and professional conduct develops into the next generation of legal professions.