The New York Court of Appeals has just issued a rare decision finding that a Judiciary Law § 487 claim cannot be sustained if the claim arises out of an attorney’s alleged misconduct occurring before the underlying litigation was commenced, or after it concluded.  See Bill Birds, Inc. v. Stein Law Firm, P.C., _ N.Y.3d __, 2020 N.Y. Slip. Op. 02125 (March 31, 2020).

Bill Birds, Inc. asserted that their former attorneys allegedly induced them to bring a meritless trademark lawsuit against General Motors (GM) for the sole purpose of collecting legal fees.   Plaintiffs also alleged that their attorneys concealed the dismissal of the underlying action for several months and subsequently lied about the reason for the delay.

In her opinion affirming the dismissal of the Judiciary Law §487(1) claim, Chief Justice DiFiore held a Judiciary Law § 487 claim applies only if the alleged misrepresentations are made in the course of litigation.  Thus, the Court held that the plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit was insufficient to state a viable claim. The Court similarly held that defendants’ alleged delay in informing plaintiffs about the underlying dismissal fell outside the scope of Judiciary Law § 487 because it occurred after the litigation had ended.  

The Court of Appeals did not address the defendants’ argument that plaintiffs failed to establish “a chronic or extreme pattern of legal delinquency” in order to set forth a Judiciary Law §487(1) claim.  Accordingly, there remains a differing standard on whether or not this is a requirement in the various NYS Judicial Departments.  For example, the First Department has held that such conduct is a predicate for Judiciary Law § 487 liability, see Freeman v. Brecher, 155 A.D.3d 453, 454 (1st Dept. 2017) while the Second Department has eliminated the “chronic, extreme pattern of delinquency” predicate for liability. See Dupree v. Voorhees, 102 A.D.3d 912, 913 (2d Dept. 2013).

If you have any questions or need any further information regarding the foregoing, or legal malpractice cases generally, please do not hesitate to contact us.  See the full decision here.