"Distinctions in Claims of 'Fraud on the Court,' Common Law Fraud and Judiciary Law 487" By Kevin Schlosser

I often receive inquiries regarding what people loosely refer to as “fraud on the court.” This general topic can encompass a variety of subjects. Generally speaking, it is useful to understand the basic concepts that can be considered under this notion of “fraud on the court.” There are three relevant categories to distinguish:

1. Common Law Fraud. This is the “tort” comprising a civil cause of action with an array of remedies and special benefits and requirements, allowing the claimed victim of the fraudulent conduct to sue the accused defrauder to rescind (undo) transactions or recover damages.
2. Fraud on the Court. This is a judicial-made concept (developed by judges through case law decisions, or common law) under which judges use their inherent discretion and authority to impose sanctions on parties to litigation who act deceitfully to undermine the integrity of the judicial process.
3. New York Judiciary Law Section 487. This is a specific statute created by the legislature directed at attorneys in litigation (pending lawsuits) who act deceitfully with an intent to deceive the court or a party to a lawsuit, creating both criminal and civil penalties.

Here are the basic distinctions of each of the above:

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