Sunday, March 29, 2009

I read in "Judiciary Law 487 Targets Attorneys in Legal Malpractice (March 9, 2009) that NY Judiciary 487 to NY cases. There's a great case Feb2009 where this law prohibits a lawyer from presenting information with intent to deceive the court, whether it's successful or unsuccessful. This case was certified by the 2nd Circuit (Federal Court) overseeing NY, e.g. SDNY (Southern District of NY). Apparently the law dates back 740 years (not a typo: since is the original law was in 1275). What gets me is how readable the words are, and how they are almost identical.

"[a]n attorney or counselor who: . . . is 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."

Instead, as the Amalfitanos point out, section 487 descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. The relevant provision of that statute
specified that


"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, and thereof be attainted, he shall be imprisoned for a Year and a Day, [*3]and from thenceforth shall not be heard to plead in [that] Court for any Man; and if he be no Pleader, he shall be imprisoned in like manner by the Space of a Year and a Day at least; and if the Trespass require greater Punishment, it shall be at the King's Pleasure"

(3 Edw, c 29; see generally Thomas Pitt Taswell-Langmead, English Constitutional History 153-154 [Theodore F.T. Plucknett ed, Sweet & Maxwell, 10th ed 1946]).

My question is: does this ancient law, which was reviewed and updated in 1965 in NY, apply to Federal Cases that are tried in NY?

I'd appreciate hearing an answer.

This also raises the question whether the lawyer needs warned 21 days in advance (as per the Federal Rules of Civil Procedure 11), something the NY law does not require. It's almost as if NY had better, tougher laws on lying to the court than the Federal Government.

This is not an academic point: my case 06cv3834 in SDNY was initially filed in NY State, and Amex moved it to SDNY. Should moving it to federal court allow the lawyer to have a 21 day safe harbor?


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