An attorney violates Section 487 of the N.Y. Judiciary Law (Section 487) when she or he "is guilty of any deceit or collusion or consents to any deceit or collusion with intent to deceive the court or any party..." N.Y. Judiciary Law §487. Such a violation may lead to severe consequences: criminal liability and/or treble damages awarded to the plaintiff. Id. Recently, New York courts have read the statute expansively, concluding that a single act of "intentional deceit" may be enough to impose liability. See, e.g., Dupree v. Voorhees, 102 A.D.3d 912, 913 (2d Dept. 2013) (the "alternative predicate for liability under Judiciary Law §487 based upon an attorney's chronic, extreme pattern of legal delinquency ... should not be followed, as the only liability standard recognized in Judiciary Law §487 is that of an intent to deceive") (internal citations omitted). Perhaps more importantly, in two recent decisions the New York Court of Appeals expanded the statute to cover only attempted deceit. See Amalfitano v. Rosenberg, 12 N.Y.3d 8, 12 (2009)], (holding that a six-year statute of limitations applies to Section 487 claims); Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 14 (2014).
Owing to Section 487's harsh consequences and growing reach, it is important to understand how this centuries-old statute applies to modern-day law practice. This is particularly true when increasingly cases are being litigated outside the traditional courtroom setting and instead through some form of alternative dispute resolution. This article will address the application of Section 487 to non-judicial proceedings such as mediations and arbitrations. We conclude that Section 487 should not apply in those settings.
Statutory Language and Legislative History
In pertinent part, Section 487 states:
An attorney or counselor who:
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Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party ...
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. (Emphasis added).
The italicized language ("the court or any party") is key to our analysis. It suggests that, by its plain terms, this statute is intended to apply only to proceedings in actual courts, not in extra-judicial proceedings such as arbitration. Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 60, (N.Y. 2013) ("'[w]here the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.'") (quoting Patrolmen's Benevolent Assn. of City of New York v. City of New York, 41 N.Y.2d 205, 208 (N.Y. 1976)); Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001) ("[s]tatutory analysis begins with the plain meaning of a statute. The plain meaning can be extrapolated by giving words their ordinary sense.") (internal citations omitted).
This treatment of the statutory language finds support in Section 487's venerable legislative history. Section 487 is the direct successor of a law enacted in England seven centuries ago and has been on the books in New York since 1787. The statute has long been construed to require that the attorney's conduct occur before a court or during a judicial proceeding. See Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 14 (N.Y. 2014) (detailing history of Section 487, and showing its central provisions were first enacted in 1275 as part of the Statute of Westminster); Amalfitano v. Rosenberg, 12 N.Y.3d 8, 12 (2009) (same). The original statute read (in relevant part): "if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King's Court, or consent [unto it] in deceit of the Court [or] to beguile the Court¸ or the Party..." Amalfitano, 12 N.Y.3d at 12 (quoting 3 Edw, ch. 29) (emphasis added). When the New York Legislature adopted the law five centuries later, the...
