History of Deceit

In 1787, the New York

legislature enacted a statute similar to Chapter 29 of the First Statute of Westminster. See Amalfitano v. Rosenberg, 903 N.E.2d (N.Y. 2009) (Id. at 265, 267) (noting “strikingly similar language” of two statues). The New York legislature appears to have relied heavily upon the language of the thirteenth-century English statute in criminalizing an attorney’s deceit or collusion with the intent to deceive the court or party. See Benton, supra note 181, at 84 (noting that relevant provisions of New York’s statute “practically embody” provisions of Statute of Westminster).  However, New York’s statute added one interesting component: treble damages. In addition to imprisonment, a lawyer found guilty under the statute was required to “pay to the party grieved, treble damages.” See, Amalfitano, 903 N.E.2d at 267 (quoting L. 1787, ch. 35, §5). In addition, the statute provided that the guilty attorney would also pay the  costs of suit. (Id.) The language of the statute changed with subsequent recodifications through the nineteenth century, but the provisions making attorney deceit a crime punishable by imprisonment and permitting a party injured by a lawyer’s deceit or collusion to recover treble damages in a civil action remained a constant. (Id.)

In mentioning the jurisdictions earlier, the majority designate such conduct a misdemeanor and allow an injured party to recover treble damages in a civil action, of which a few also mention the possibility of disbarment for the offending attorney, but do not criminalize the deceit or collusion. See, IOWA CODE ANN. § 602.10113; N.M. STAT. ANN. § 36-2-17; and WYO. STAT. ANN. § 33-5-114.


Prior to 2009, New York courts generally interpreted and applied section 487 of New York’s Judiciary Law in much the same manner as other jurisdictions. Consistent with the majority approach, New York courts concluded that the statute tracked the common law tort of fraud or misrepresentation, thus requiring justifiable reliance resulting in damages. See Dupree v. Voorhees, 876 N.Y.S.2d 840, 844-45 (N.Y. Sup. Ct. 2009) (referencing prior decisions). Some New York courts had adopted an especially restrictive interpretation of the statute, stating that the statute’s application “must be carefully reserved for the extreme pattern of legal delinquency,” despite the fact that this language does not appear in the statute. See, Wiggin v. Gordon, 455 N.Y.S.2d 205, 207 (N.Y. Civ. Ct. 1982); See also Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008) (citing cases using similar language and noting that requirement “appears nowhere in the text of the statute”).