On Second Thought, You’re Excused: 9th Circuit En Banc Panel Finds “Excusable Neglect” in Delegation of Calendaring to Paralegal

Last December Decs & Excs reported on the case of Pincay v. Andrews, in which the 9th Circuit U.S. Court of Appeals held that an attorney who missed a critical filing deadline after relying on a paralegal to schedule the filing date would not be relieved from the dire consequences of that error.  Here is a repeat of the earlier summary of the facts:   

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’^[1] 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 majority on the original 3-judge panel found that counsel’s error was neglect, but not “excusable” neglect.  As noted by a commenter to my original post, the 9th Circuit granted rehearing of the matter en banc in May of this year.  Now, the Court has overturned the decision of the earlier 3-judge panel, and has concluded that the trial court’s decision to grant relief from the calendar error can only be overturned in the event of a patent abuse of that court’s discretion and that the law as articulated by the U.S. Supreme Court does not permit a rigid per se rule against delegating calendar responsibilities to non-lawyer staff.  Finding no obvious error, the en banc panel has sustained the order granting relief, and directed that the appeal from the judgment should proceed forward to a hearing on its merits. Relying principally on  the 1993 Supreme Court decision in Pioneer Investment Services Co. v. Brunswick Associated Ltd. Partnership, 507 U.S. 380, the 9th Circuit emphasizes that each case must be dealt with on its own particular facts, applying a four-part analysis considering “(1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party’s conduct was in good faith.”  The trial court found that factors 1, 2 and 4 all supported relief, and that while the “reason for delay” was plain error in reading the controlling rule, that error should be excused.

In the modern world of legal practice, the delegation of repetitive legal tasks to paralegals has become a necessary fixture. Such delegation has become an integral part of the struggle to keep down the costs of legal representation. Moreover, the delegation of such tasks to specialized, well educated non-lawyers may well ensure greater accuracy in meeting deadlines than a practice of having each lawyer in a large firm calculate each filing deadline anew. The task of keeping track of necessary deadlines will involve some delegation. The responsibility for the error falls on the attorney regardless of whether the error was made by an attorney or a paralegal. [Citation.]  We hold that delegation of the task of ascertaining the deadline was not per se inexcusable neglect.

Although in this case “the misreading of the Rule was egregious, and the lawyer undoubtedly should have checked the Rule itself before relying on the paralegal’s reading”, the 9th Circuit nonetheless finds that the trial court was permitted to grant relief.

We are persuaded that, under Pioneer, the correct approach is to avoid any per se rule. Pioneer cautioned against ‘erecting a rigid barrier against late filings attributable in any degree to the movant’s negligence.’ 507 U.S. at 395 n.14. There should similarly be no rigid legal rule against late filings attributable to any particular type of negligence. Instead, we leave the weighing of Pioneer’s equitable factors to the discretion of the district court in every case.

The decision of the en banc panel in Pincay v. Andrews (Nov. 15, 2004), Case No.  02-56577, including a stern dissent by Judge Alex Kosinski,² can be found at this link in PDF format.

¹ The firm in question is not merely large, but well-known and well respected: Boies, Schiller & Flexner of Armonk, New York, i.e., the offices of attorney David Boies of Microsoft and Bush v. Gore fame.

² A sample of Judge Kosinski’s view that the attorneys should be required to produce “something” beyond admitting their mistake before their neglect can be deemed “excusable”:

Defendants do point to one exonerating circumstance, though it is not so much a “reason” for the delay as a proof of their good faith, which we assume anyway: their lawyer’s '[c]arefully [d]esigned and [s]taffed,' 'reliabl[e] and successful[]' calendaring system. [Citation.] But this doesn’t help them: Extreme good faith has no exonerating power of its own; bad faith can sink an excusable neglect claim, and good faith is nothing but the absence of this negative. In any event, the calendaring system here did not fail. The wrong date was calendared with meticulous efficiency and accuracy. But the lawyer did fail by abdicating his basic duty -- to determine the applicable appeal deadline based on a clear-as-day rule.

At bottom, what the sophisticated-calendaring-system excuse comes down to is that the lawyer didn’t bother to read the rule; instead, he relied on what a calendaring clerk told him. While delegation may be a necessity in modern law practice, it can’t be a lever for ratcheting down the standard for professional competence. If it’s inexcusable for a competent lawyer to misread the rule, it can’t become excusable because the lawyer turned the task over to a non-lawyer. Errors made by clerks performing lawyerly functions are probably less excusable than those made by the lawyer himself; they certainly can’t be more so.