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Deception by Attorneys in Court Proceedings


Legal Malpractice cases come to McCarthy Fingar in many different forms. Clients are sometimes a victim of a lawyer's deceptive conduct or statement in court proceedings. Yet, attorneys who engage in deception in court proceedings do not commit legal malpractice. Malpractice is a form of negligence or carelessness. Deception is a deliberate, intentional act, and is far more serious than malpractice. In fact, as discussed on this page, deception by a lawyer in the course of a legal proceeding is a crime. It also exposes a lawyer to substantial civil liability.

New York Judiciary Law § 487

The law provides that an attorney deceiving a party or the court can be held liable for treble (triple) damages. New York Judiciary Law § 487 provides:

"An attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consent to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefore by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action . . . ."

Recent Cases Decided under Judiciary Law § 487

If a lawyer is "guilty of any deceit or collusion" or is found to "consent to any deceit or collusion, with intent to deceive the court or any party", a party can recover treble damages against the lawyer. The recent cases illustrate the broad reach of this statute.

In Amalfitano v. Rosenberg, 12 N.Y.3d 8 (2009), the underlying case was a dispute about a financial obligation. The plaintiffs misrepresented the facts in their complaint. The defendants counterclaimed under Judiciary Law § 487, seeking to recoup their legal fees- trebled. The Court of Appeals held that a party to a litigation that had misrepresented the facts to the court in its complaint could be held liable for statutory treble damages and the prevailing party’s attorney fees. It did not matter whether the Court believed in the misrepresentation or relied on it; the misrepresentation itself created a right of action. In a short but remarkably broad decision, the Court of Appeals traced the statute’s origins back to the first decades after the Magna Carta, and lauded “the statute’s evident intent to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.” This case carves out an exception to the usual rule that prevailing parties cannot recover their attorneys’ fees from the losing party.

Rock City Sound v. Bashian & Farber, 74 A.D.3d 1168 (2d Dep't 2010), motion for leave to appeal denied, 16 N.Y.3d 826 (2011), is still pending. There, it is not looking good for the attorney defendant. The Appellate Division affirmed a lower court opinion that the corporate client sufficiently alleged that its attorney's malpractice caused it damage. The corporate client alleged a loss of its equipment, assets, and an inability to continue in business, due in part to an attorney's negligent legal advice. The corporate client also alleged its attorney's deceit, for which treble damages were available, by asserting that the attorney knowingly advised and counseled one 50% shareholder to violate a court injunction order; and failed to advise the other 50% shareholder of the sale of all the assets; and failed to move to be relieved as the corporation's counsel in light of the conflict between the shareholders. On a second appeal, 83 A.D.3d 685 (2d Dep't 2011), the Appellate Division upheld the trial court striking the defendant law firm’s answer for "willfully and contumaciously defying" the lower court’s discovery orders. The disastrous outcome for the law firm defendant: it faces treble damages, and has now lost most of its ability to defend the case at all at an inquest hearing on damages.

Deceit on the part of one lawyer can expose an entire law firm to liability. In Scarborough v. Napoli Kaiser & Bern, 63 A.D.3d 1531 (4th Dep't 2009), the underlying action was dismissed due to the law firm’s failure to timely place a plaintiff’s case on the court's trial calendar. To make matters worse, one of the lawyers in the firm allegedly told the plaintiff that he could not prevail in his underlying action, but failed to inform the client that the action already had been dismissed as a result of the law firm’s failure to calendar the case. Even though another lawyer in the firm telephoned plaintiff and told him about the actual basis of the dismissal, none of the attorney defendants in the legal malpractice case was entitled to summary judgment dismissing the Judiciary Law § 487 cause of action against them. Deceit on the part of some individual attorneys resulted on exposure of the entire firm to treble damages. 

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McCarthy Fingar's Legal Malpractice lawyers are dedicated to our clients' success. If you think you may require our assistance or have any questions, please contact Joseph J. Brophy by email (jbrophy@mccarthyfingar.com) or by phone (914-385-1021).