A Lawyer's Nightmare: (In)excusable Neglect
LACBA Update, January 2005

By Louisa Lau, member, LACBA Professional Responsibility & Ethics Committee. Lau practices civil litigation and is a senior staff counsel with State Compensation Insurance Fund. She is also a member of the California State Bar Committee on Professional Responsibility and Conduct. The opinions expressed are her own.

In a Ninth U.S. Circuit Court of Appeals case, Pincay v. Andrews (No. 02-56577, filed 6-24-2004), the defendant-appellee's lawyer missed a critical 30-day deadline in which to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(A).

The rule provides for a grace period of 30 days within which a lawyer may seek an extension of time, and the court, in the exercise of its discretion, may grant the extension if it determines that the neglect of the attorney was "excusable."

The law firm's calendaring clerk misread the rule and advised the attorney that the notice was not due for 60 days, the time allowed when the government is a party to the case. See Fed. R. App. P. 4(a)(1)(B).

In this particular case, everyone involved in the protracted litigation should have known that the government was not a party to the case. After the lawyer learned about the error, he promptly tendered a notice of appeal together with a request for an extension within the 30-day grace period. The district court found excusable neglect and granted the motion for an extension of time to file the notice of appeal.

On appeal by appellant, a majority of the three-judge panel concluded that the lawyer had improperly delegated the function of calendaring to a paralegal and held that the attorney's reliance on a paralegal was inexcusable as a matter of law. Pincay v. Andrews, 351 F.3d 947, 951-52 (9th Cir. 2003). It ordered the appeal dismissed. Appellee appealed the ruling. The case was reheard by the Ninth Circuit Court en banc to consider whether the creation of a per se rule against delegation to paralegals, or indeed any per se rule involving missed filing deadlines, is consistent with the U.S. Supreme Court's leading authority on the modern concept of excusable neglect. Pioneer Investment Services Co. v. Brunswick Associated Ltd. Partnership, 507 U.S. 380 (1993). The majority of the court held that per se rules are not consistent with Pioneer and upheld the exercise of the district court's discretion to permit the filing of the notice of appeal in this case.

The court considered the four factors established in Pioneer, the balancing test for determining whether there had been "excusable neglect." The Pioneer factors include: (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. 507 U.S. at 395.

The court held that delegation of the task of ascertaining the deadline is not per se inexcusable neglect and commented that the responsibility for the error falls on the attorney regardless of whether the error was made by an attorney or a paralegal. See Model Rules of Professional Conduct, Rule 5.5, cmt. 2 (2002).

The next question was whether the misreading of the clear rule appropriately could have been considered excusable. The majority of the court upheld the district court's findings with three justices dissenting.

The dissent stated that "if excusable neglect must be neglect, it must also be excusable" and that in this case the defendants "needed to show something" to make their neglect excusable. "[T]he lawyer did fail by abdicating his basic duty -- to determine the applicable appeal deadline based on a clear-as-day rule." The dissent further stated that "[w]hile 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." The Supreme Court in Pioneer told us that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect." 507 U.S. at 392. The dissent would hold that the error whether made by the lawyer, the calendaring clerk, or the candlestick maker, is inexcusable and dismiss the appeal as untimely.

But for now, the Ninth Circuit has extricated lawyers from their nightmare in this type of situation.