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THE COMPLAINT AGAINST ATTORNEYS STATED A CAUSE OF ACTION FOR “DECEIT AND COLLUSION” PURSUANT TO JUDICIARY LAW 487 WHICH IS NOT THE SAME AS COMMON LAW FRAUD; THERE IS NO NEED TO SHOW A PARTY WAS MISLED BY THE ATTORNEY’S INTENTIONAL FALSE STATEMENTS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint stated a cause of action against an attorney (Moore) for “deceit and collusion” within the meaning of Judiciary Law 487:

Judiciary Law § 487 provides, in pertinent part, that “[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents 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 therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” In essence, the statute “imposes liability for the making of false statements with scienter” … . However, “Judiciary Law § 487 is not a codification of common-law fraud and therefore does not require a showing of justifiable reliance” … . Stated another way, “liability under the statute does not depend on whether the court or party to whom the statement is made is actually misled by the attorney’s intentional false statement” … ; i.e., the statute “focuses on the attorney’s intent to deceive, not the deceit’s success” … .

… [P]laintiffs alleged in their amended complaint that, from the time he became the client’s attorney, Moore engaged in a pattern of conduct whereby he advocated for the validity of a fraudulent deed, and oversaw the revision of fraudulent surveys based upon that deed. Plaintiffs alleged that Moore was in possession of documents and correspondence establishing that the deed was the fraudulent product of the client and defendant Aaron I. Mullen, an attorney who had previously represented the client, and that Moore failed to disclose those items despite receiving a valid discovery demand for them. Plaintiffs also alleged that Moore instituted a CPLR article 78 proceeding based upon the allegedly fraudulent deed and that he attached the deed to the petition. Plaintiffs further alleged that Moore participated in the client’s fraud, and did so intentionally and with knowledge of the client’s fraud, to plaintiffs’ detriment of more than $100,000 in legal fees and expenses. Ostrander v Mullen, 2024 NY Slip Op 06461, Fourth Dept 12-20-24

Practice Point: A Judiciary Law 487 action against an attorney focuses on the attorney’s intent to deceive, not whether the deceit was successful.

 

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