Your front-page article regarding a Western District magistrate judge’s recommendation in Bounkhoun v. Barnes, 2017 WL 1331359 (“Criminal Conviction Needed for Attorney Misconduct Finding,” April 24) quoted a law professor to the effect that the magistrate “may be right.” In fact, the magistrate’s decision is directly contrary to New York law, which has held for at least 100 years that a judgment in a civil action under Judiciary Law §487 (and its predecessors) does not require either a criminal conviction or proof beyond a reasonable doubt.
That rule was reaffirmed as recently as 2005 in Papa v. 24 Caryl Ave. Realty, 23 A.D.3d 361, 362 (Second Dep’t 2005), relying on Snow v. Shreffler, 148 App.Div. 422 (Fourth Dep’t 1911) (“Contrary to [defendant's] contentions, the [§487] judgment against him in this civil action does not constitute a criminal conviction requiring proof beyond a reasonable doubt at trial.”)
None of that case law was mentioned in the magistrate’s report. The magistrate referred to Amalfitano v. Rosenberg, but the holding in Amalfitano that “deceit” is legally distinct from “fraud” logically means that even the fraud standard of proof of “clear and convincing evidence” no longer applies under §487. See, Guardian Life Ins. of America v. Handel, 190 A.D.2d 57, 63 (First Dep’t 1993) (equating deceit with fraud for statute of limitations purposes).
Jeffrey A. Jannuzzo
The writer, an attorney in Manhattan, filed
an amicus brief in the Amalfitano case.