Judiciary Law §487 is a century-old common law statute regulating attorney deceit. It defines conduct intended to deceive the court or any party as a misdemeanor and sets treble damages as a penalty. Because it has generally been thought of as a quirky subset of legal malpractice and because of its ancient origins it has been known as a fringe theory of law. Judiciary Law §487 has burst into prominence and scholarly acceptance since the Court of Appeals decided Amalfitano v. Rosenberg, 12 NY3d 8 (2009) in February 2009. This decision traced the 735-year history of what may be the oldest continuous statute in Anglo-American history. The Court of Appeals held that recovery of treble damages under Judiciary Law §487 does not depend upon the court’s actual belief in a material misrepresentation of fact in a complaint. An intent to deceive, rather than a completed deception is all that is necessary to trigger a successful Judiciary Law §487 case.

In Amalfitano the Court of Appeals held that when 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 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.

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