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Attorney Deceit Statutes

Attorney Deceit Statutes

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Published by 83jjmack
Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute through its decision in Amalfitano v. Rosenberg. This Article discusses the extent to which, in this age of widespread distrust of the legal profession, this type of external regulation of the legal profession is a desirable approach.
Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute through its decision in Amalfitano v. Rosenberg. This Article discusses the extent to which, in this age of widespread distrust of the legal profession, this type of external regulation of the legal profession is a desirable approach.

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Published by: 83jjmack on Sep 30, 2013
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413
Attorney Deceit Statutes:Promoting Professionalism ThroughCriminal Prosecutions and TrebleDamages
 Alex B. Long
*
 Unbeknownst to many lawyers, at least twelve jurisdictions — including New York and California — have statutes on the books thatsingle out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion facescriminal penalties and/or civil liability in the form of treble damages.Until recently, these attorney deceit statutes have languished in obscurityand, through a series of restrictive readings of the statutory language,have been rendered somewhat irrelevant. However, in 2009, the New YorkCourt of Appeals breathed new life into New York’s attorney deceit statutethrough its decision in
Amalfitano v. Rosenberg
. This Article discussesthe extent to which, in this age of widespread distrust of the legal profession, this type of external regulation of the legal profession is adesirable approach. The Article concludes that although the utility of existing attorney deceit statues is undermined by the broadness of thelanguage, the symbolism of the statutes is important. By relying on thedevelopment of tort law to address the same subject matter, courts canachieve the same educational and symbolic goals while dealing withattorney deceit on a more practical basis.
*
Associate Professor of Law, University of Tennessee College of Law. My thanksto the participants at the Oklahoma City University School of Law faculty colloquium,including Paula Dalley, the Honorable Neil Gorsuch, Carla Spivack, and DeborahTussey, for their comments and participation. Thanks also to Tom Davies and MauriceStucke for comments and assistance. Paul Wehmeier provided valuable researchassistance for which I am grateful.
 
 
414
University of California, Davis
[Vol. 44:413T
ABLE OF
C
ONTENTS
 I
NTRODUCTION
................................................................................... 415I. D
ECEIT IN THE
P
RACTICE OF
L
AW
............................................ 420
 A. Deceit in Motion Practice
................................................... 420
B. Deceit in the Discovery Process and in the Presentationof Evidence
........................................................................ 422
C. Deceit in Negotiations
........................................................ 425
D. Limitations to the Current Regulatory Approaches to Attorney Deceit
.................................................................. 428II. T
ORT
L
AW
EMEDIES IN THE
E
VENT OF
A
TTORNEY
D
ECEIT
...... 431
 A. Special Tort Rules that Apply to the Legal Profession
......... 431
B. Tort Claims Involving Deceit in Motion Practice
................ 4331. Defamation ................................................................. 4332. Misrepresentation ....................................................... 4343. Malicious Prosecution and Abuse of Process ............. 4344. Malicious Defense....................................................... 437
C. Tort Claims Involving Deceit in the Discovery Processand in the Presentation of Evidence
.................................... 4381. No Civil Remedy for Perjury ...................................... 4392. Spoliation of Evidence ................................................ 440
D. Tort Claims Involving Deceit in Negotiations
..................... 441III. A
TTORNEY
D
ECEIT
S
TATUTES
................................................... 444
 A. A Summary of the Various Attorney Deceit Statutes
........... 444
B. The Interpretation of the Statutes
....................................... 4491. The Majority Approach .............................................. 4492. The New York Approach ............................................ 452IV. T
HE
M
EANING OF
 A
MALFITANO
AND THE
P
OTENTIAL
S
IGNIFICANCE OF
A
TTORNEY
D
ECEIT
S
TATUTES
....................... 457
 A.
Amalfitano
as Revolutionary Change
................................ 4571. The Persuasive Effect of 
 Amalfitano
........................... 4582. Tort Claims Involving Deceit in Motion Practice ...... 4603. Tort Claims Involving Deceit in the DiscoveryProcess and in the Presentation of Evidence ............. 4614. Tort Claims Involving Deceit in Negotiations ........... 463
B.
Amalfitano
as Anomaly: Why Courts Are Unlikely toFollow
Amalfitano
(At Least Not to Its Logical Extreme)
... 4641. Conflicts with the Legal Profession’s View of Itself ... 4642. Creating Tension in Existing Tort Law ...................... 4663. Problems of Overdeterrenceand Overcriminalization ............................................. 467
C.
Amalfitano
as a Harbinger of Legislative Scrutiny of and Judicial Intolerance of Attorney Deceit
........................ 469
D.
Amalfitano
as Model for Reform
........................................ 474
 
 
2010]
 Attorney Deceit Statutes
4151. The Advantages of Tort Law ...................................... 4742. Recognizing Limited Liability for Fraud upona Court ........................................................................ 477C
ONCLUSION
....................................................................................... 480I
NTRODUCTION
 
It is provided also, 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 thecourt, or to beguile the court, or the party, and thereof be attainted, heshall be imprisoned for a year and a day, and from thenceforth shall notbe heard to plead in that court for any man; and if he be no pleader, heshall be imprisoned in like manner by the space of a year and a Day atleast; and if the trespass require greater punishment, it shall be at theking’s pleasure.
— Chapter 29, First Statute of Westminster (1275)
deceit
: 1. The action or practice of deceiving; concealment of the truthin order to mislead; deception, fraud, cheating, false dealing.
— The Oxford English Dictionary (2d ed.)There can be little doubt that the legal profession has a problem interms of the public’s perception of lawyers’ honesty and theprofession’s ability and willingness to police its members. Althoughthere may be dispute within the legal profession as to just howwidespread attorney deceit is within the practice of law, surveysconsistently reveal that the public has a low opinion of lawyers’honesty.
1
When discussing the lawyer disciplinary process,commentators also frequently make note of the public’s skepticismregarding whether the legal profession is willing to draft and enforceprofessional ethics rules in the public’s interest, rather than the
1
See
Michael C. Dorf,
Can the Legal Profession Improve Its Image?: AmericansBelieve Lawyers to Be Necessary but Dishonest, Survey Finds
, F
IND
L
AW
S
 W
RIT
(Apr. 17,2002), http://writ.news.findlaw.com/dorf/20020417.html (reporting findings of Columbia Law School survey showing that nearly forty percent of respondentsbelieved that lawyers were either especially dishonest or somewhat dishonest); LydiaSaad,
Nurses Shine, Bankers Slump in Ethics Ratings
,
 
G
ALLUP
N
EWS
S
ERVICE
(Nov. 24,2008), http://www.gallup.com/poll/112264/nurses-shine-while-bankers-slump-ethics-ratings.aspx (reporting survey results placing legal profession among lowest of professions in terms of honesty and ethics);
see also
Gary A. Hengstler,
Vox Populi:
 
ThePublic Perception of Lawyers: ABA Poll
, 79-Sep A.B.A.
 
 J.
 
60, Sept. 1993, at 60, 62(reporting that only twenty-two percent of respondents to poll believed that phrase“honest and ethical” describes lawyers).

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