Delegation is Not Representation: Attorney's Delegation of Responsibility to Non-Attorney is not "Excusable" Neglect

Every so often a busy attorney must rely on a non-attorney staff member to keep track of important deadlines, such as the last day on which to file an appeal. If the non-attorney misses the deadline, however, the U.S. Court of Appeals for the 9th Circuit will have no sympathy for the attorney and will not permit him or her to be relieved of the consequences of the omission.

Laffit Pincay Jr. and Chris McCarron -- two well-known and successful jockeys -- were engaged in litigation with Vincent Andrews Management Co. and its principals for some 13 years, finally obtaining a judgment against the Andrews parties in 2002. When the judgment arrived, a non-attorney calendaring clerk in the unnamed "large law firm" representing Andrews notified the handling attorney. An e-mail exchange followed, in which the attorney relied on the calendar clerk to determine and make note of the deadline to appeal. The clerk's calculations were inaccurate, and the appeal date came and went without action being taken. On discovering the error, the attorney quickly sought an order from the trial court to extend the appeal date. The attorney argued that his reliance on the calendar clerk was reasonable and that the error was the result of "excusable neglect." The trial court agreed and granted the extension; Pincay and McCarron appealed that order -- that is, they appealed from the extension of their opponent's time to appeal -- and the 9th Circuit has now ordered the extension reversed, cutting off Andrews' appeal. The judges in the majority were unequivocal in their disapproval of the attorney's excuse:

Andrews’ counsel did not show good cause for his failure to file on time, nor can his action be classified as excusable neglect. What counsel did was to delegate a professional task to a nonprofessional to perform. Knowledge of the law is a lawyer’s stock in trade. Bureaucratization of the law such that the lawyers can turn over to nonlawyers the lawyer’s knowledge of the law is not acceptable for our profession.

(Emphasis added.) In dissent, Circuit Judge Andrew T. Kleinfeld did not endorse the attorneys' erroneous practice, but urged that the lower court was within the bounds of its considerable discretion in excusing it:

My dissent is directed to the proposition that compels the majority’s conclusion: 'Not knowing the law governing one’s practice is different from mere neglect, and it cannot be classed as excusable neglect,' especially when compounded by delegation of that knowledge to a non-lawyer. This holding is erroneous. Ignorance of the law and negligent delegation can indeed be classed as excusable neglect. And ignorance of the law plus negligent delegation—not knowing that the deadline for filing a notice of appeal in a civil case where the government is not a party is 30 days, not 60, and relying on a calendar clerk’s reading of Federal Rule of Appellate Procedure 4—is the precise error that the Andrews’ lawyer made.

The majority fleshes out this concept of ignorance of the law, qualifying it with its concern that the lawyer delegated professional tasks to a non-lawyer to perform. Delegation may be negligent, but negligence, under Pioneer, can be “excusable neglect.” There is no difference in principle between negligent mistake of law and negligent supervision. All professionals delegate. Medical doctors delegate many traditional duties to physician’s assistants and nurses. Lawyers and judges delegate to associates, law clerks, interns, paralegals, calendar clerks, and secretaries. Lay calendar clerks commonly set trial dates for district judges, who delegate to them to avoid Speedy Trial Act errors. Of course delegation can be excessive, but what matters is the degree of supervision.

He adds an expression of concern for the perhaps unintended consequences of the majority's strict interpretation, with a nod to the likely consequences of the ruling for the attorney involved:

Good lawyers commonly give their adversaries stipulations relieving them of inadvertent errors not going to the merits. The rigid per se rule the majority creates today will make it difficult for them to do so. Our court thereby damages the mutual civility and accommodation that characterizes the practice of law at its best. This unnecessary rule will be career-destroying for decent lawyers who make inadvertent errors.

The 9th Circuit's decision in Pincay v. Andrews (Dec. 10, 2003), Case No. 02-56577, can be found at the following link in PDF format.

An incidental note: The majority took particular offense at this sort of error being made by a large and prominent law firm. Attorneys in small firms or solo practices would not necessarily be treated so harshly under similar circumstances, as Judge Kleinfeld remarks in his dissent:

I certainly do not quarrel with the majority’s exasperation at an experienced lawyer from a large and well-staffed firm carelessly delegating the reading of appellate rules to a nonlawyer and failing adequately to supervise. And I note with approval that the majority indicates this was a 'large law firm,' distinguishing the negligence here from that of a solo practitioner, who 'would not even be in a position to attempt this kind of delegation.' The majority thus leaves room, in a solo practitioner’s case, for the court to consider whether the decision in the case at bar should be distinguished. A lawyer in a large firm who was out of town could presumably have some young associate work as late into the night as necessary to discover, read, and follow Federal Rule of Appellate Procedure 4, but a solo would be unable to call upon such useful help.

Comments

[David Giacalone]

Whether or not the error here was excusable I will leave to experts in that topic (although making sure that appeal deadlines are met in an appellate practice is awfully important and basic). In general, it would seem to me that a lawyer should be held equally responsible (should suffer the same consequences) when the mistake is made by a non-lawyer staffer than when it is made by the lawyer, as delegation is a necessity in every law office. However, at times, the delegation can be done so recklessly (with so little training or supervision) that the delegation itself becomes the problem and warrants stricter consequences for the lawyer than would happen if the lawyer himself made the mistake absentmindfully. That's because the reckless delegation intolerably increases the likelihood of mistakes being made.

Perhaps, there are aspects of a law practice -- such as calculating and noting the appeal deadline when the matter first arrives -- that are indeed too important to delegate. That's especially true if they can be handled quickly and accurately by the attorney before turning a file over to underlings.

[Kenneth Ofgang]

The Ninth Circuit granted en banc review of this ruling on May 7, 2004.

[TME]

I am currently having an issue with Vincent Andrews Management and their attorney that represents them. I am trying to find out the name of the attorney that was responsible in this case to see if it is in fact the same person. Is that listed anywhere? Thank you!