History of Deceit

The Amalfitano court

noted that the language of an older version of the New York’s Code of Civil Procedure contained essentially the same language as found in one of section 487’s predecessors. The derivation accompanying this section referred to the 1878 case of Looff v. Lawton, to understand the meaning of “deceit”. See, Amalfitano, 903 N.E. 2d (N.Y. 2009) (Id.).

Looff concluded that, the legislature must have intended a broader meaning to the term “guilty of any deceit.” This conclusion was bolstered by the fact that the statute targeted lawyers, “from whom the law exacts a reasonable degree of skill, and the utmost good faith in the conduct and management of the business intrusted to them.”  See, Looff v. Lawton, 14 Hun 588, 590 (2d Dept. 1878).

As such, the court concluded that the statute covered instances of fraud upon the court: “To mislead the court or a party is to deceive it; and, if knowingly done, constitutes criminal deceit under the statute cited.” See, Looff  (Id.).

Based on the reasoning of Looff and section 487’s overall legislative history, the Amalfitano court concluded that the New York legislature intended an “expansive reading” of the statutory language. See, Amalfitano, 903 N.E.2d (Id. at 268). The court held that “to limit forfeiture under section 487 to successful deceits would run counter to 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.” (Id. at 269) Thus, in answering the federal court’s first certified question, the New York Court of Appeals concluded that an action for treble damages under section 487 may be based on an attempted but unsuccessful deceit of a court.

The court’s answer to the first certified question essentially dictated the answer to the second certified question. The court concluded that:

“[w]hen a party commences an action grounded in a material misrepresentation of fact, the opposing party is obligated to defend or default and necessarily incurs legal expenses. Because, in such a case, the lawsuit could not have gone forward in the absence of the material misrepresentation, that party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation.”  (Id.)