Legal Malpractice

Judiciary Law 487 and the Other Guy's Attorney

By (Andrew Lavoott Bluestone)

Yesterday we discussed the plaintiff v. her own attorney part of Dupree v Voorhees ; 2009 NY Slip Op 09183 ; Decided on December 8, 2009 ; Appellate Division, Second Department .  Today we look at Dupree v. her husband's attorneys.  Traditionally this type of case has been out of bounds.  For policy reasons, courts do not like suits against your adversary's attorney...they might come after every case if allowed.  Here, however, after the Judiciary Law 487 claims were initially dismissed,, continued to remain dismissed on renewal, and then reversed on appeal.
For the bizarre events, see yesterday's blog entry.  It is alleged that the husband's attorneys deceived the court on an Order to Show Cause application, which permitted a receivership to be established while the wife's attorney was kept from knowing about the application.

"Based upon events which occurred in an underlying divorce action, the plaintiff commenced this action against her former attorney, Oliver Raymond Voorhees III, her former husband's attorney, Karyn A. Villar, and Villar's law partner, Dorothy A. Courten. As is relevant [*2]to this appeal, the third cause of action sought damages for abuse of process against Villar and Courten, alleging that Villar made certain misrepresentations in applying for a receivership order in the underlying action. In the fourth cause of action, the plaintiff seeks treble damages against Villar and Courten under Judiciary Law § 487, alleging that Villar intended to deceive the court in connection with a receivership application. The complaint further alleged that because Courten and Villar were partners in the same law firm, Courten was vicariously liable for the damages the plaintiff sustained as a result of Villar's alleged wrongdoing. "

"The court determined that a subsequent decision of the Court of Appeals in Amalfitano v Rosenberg (12 NY3d 8) provided a reason for granting renewal, and, upon renewal, to deny that branch of the motion which was to dismiss the complaint as against Villar with respect to the Judiciary Law § 487 cause of action. The court, however, denied the plaintiff relief with respect to the Judiciary Law § 487 cause of action against Courten, noting that Judiciary Law § 487 is rooted in the criminal law and that it would be inconsistent with this history and the statute itself to hold a second attorney responsible for the deceit of another unless the attorney participated in or ratified the wrongdoer's actions. We disagree.

Partnership Law § 24 provides that "[w]here, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act" (Partnership Law § 24 [emphasis added]). Partnership Law § 26(a)(1) provides that "all partners are liable . . . [j]ointly and severally for everything chargeable to the partnership under section[ ] twenty-four." The pivotal test for liability in this regard is whether the wrong was committed on behalf of and within the reasonable scope of the partnership business, not whether the wrongful act was criminal in nature, or whether the other partners condoned the offending partner's actions (see Rudow v City of New York, 642 F Supp 1456, affd 822 F2d 324; Muka v Wiliamson, 53 AD2d 950; see also Clients' Sec. Fund v Grandeau, 72 NY2d 62). Therefore, the Supreme Court erred in adhering to the determination in the order dated May 1, 2008, dismissing the Judiciary Law § 487 cause of action against Courten. "

Full post as published by New York Attorney Malpractice Blog on December 14, 2009 (boomark / email).