The New York Law of Litigation Misconduct: What Is It and How Did We Get Here?

No part of the law of lawyering in New York has changed more dramatically in the past decade than the law of litigation misconduct. For many years, our attorney-misconduct statute, Judiciary Law § 487, was overlooked as a historical curiosity. But recent appellate decisions have interpreted the statute differently, and § 487 has new vigor as a result. More lawyers are being sued for allegedly perpetrating deceits in litigations. And as the statute allows, those lawyers are being sued for treble damages, yet important aspects of the statute remain unclear. In key areas, courts are explicitly disagreeing over how to interpret § 487.

The recent decisions and the continuing disagreements create both risks and opportunities for lawyers, their law firms, and their clients.  All attorneys need to know what a § 487 violation looks like and how a § 487 claim might be advanced or defended.

In this program, attorney Jeremy Bates will give an overview of the statute.  He will cover the statute's history, its purpose and intent, the elements of a § 487 claim, potential defenses, and permissible damages.  The program will also emphasize recent cases interpreting § 487 and will place the statute in the context of other rules that regulate attorney conduct in New York.

Learning Objectives:

1. Explore how the history of New York's attorney-misconduct statute has influenced its interpretation today
2. Identify the elements of a claim under Judiciary Law § 487 and learn how the New York Court of Appeals interpreted the statute in Amalfitano and Melcher. With these cases as background, begin to recognize situations where a § 487 claim might arise and to anticipate the possible defenses
3. Discuss what § 487 is not, and what it does not do.  Distinguish attorney misconduct under § 487 from other types of lawyerly misbehavior.  Understand § 487 as one of several different tools that courts and litigants use to regulate lawyers
4. Appreciate the current uncertainties about § 487-where courts are disagreeing now over what § 487 means, going forward