In New York Law Journal Column, Professor Anita Bernstein and John Crain ‘19 Suggest Resolution of NY Judiciary Law § 487 Question

In her most recent column in a series on legal malpractice in the New York Law Journal, Anita Bernstein, Anita and Stuart Subotnick Professor of Law, and John Crain ’19, suggested a solution to a longstanding problem posed by New York Judiciary Law §487, which provides for treble damages in legal malpractice cases when the lawyer’s behavior was particularly egregious. Courts unfortunately have not been able to agree on how to determine when the lawyer’s actions merit such damages.

Bernstein and Crain argued that a recent case, Bounkhoun v. Barnes, now presents the opportunity to resolve this issue by submitting a certified question to the New York Court of Appeals. “Which elements not expressly provisioned in Judiciary Law §487, if any, are necessary for a successful claim of treble damages?” is the question they have suggested.

“A certified question would do a lot of good here. New York judges have for decades been repeating demands not found expressly in this statute,” wrote Bernstein and Crain. “Reminiscent of the deft answers it gave in response to a pair of certified questions about §487 in Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009), New York’s highest court could clear away layers of judge-written brush.”

Bernstein is a nationally recognized authority on tort law and feminist jurisprudence, as well as professional responsibility and products liability. Her awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems. Bernstein has published in dozens of law reviews and she is recognized as one of the most highly cited scholars in the field of Torts and Products Liability by Brian Leiter's Law School Reports.

Read the column here.