A Litmus Test for Pioneer: Ethical Considerations and the Delegation Situation

Abstract

The term "excusable neglect" is found in at least two federal statutes and in ten different rules of federal civil, criminal, bankruptcy, or appellate procedure. In light of its prolific use, it is not surprising that the question whether to excuse or not to excuse conduct by counsel resulting in a failure to comply with a procedural rule frequently reverberates throughout judicial opinions. Certainly, the answer to the question of what type of conduct constitutes excusable versus inexcusable neglect should be of extreme importance to the individual attorney whose action or inaction is at issue. A judicial ruling that conduct by an attorney constitutes inexcusable neglect should not bode well for retaining current clients or attracting future ones. Further, it should not bolster the attorney's reputation with other members of the state and local bar. In Pioneer Investment Services Company v. Brunswick, the Court endorsed a "flexible understanding" of excusable neglect and set forth an equitable, four-part balancing test, which has now basically been extended to apply in all cases where the lower courts are required to define the meaning of the phrase "excusable neglect." Logically, any shortcomings in the flexible Pioneer four-factor test should be revealed when its application is examined across the circuits in fact scenarios involving the individual conduct of counsel and the various rules of procedure. The purpose of this Article, however, is to examine the legacy of Pioneer irrespective of the procedural rule involved. Rather, the focus will be on whether or not the methodology prescribed by the Court in Pioneer is providing ample guidance to the lower courts as they grapple with the issue of excusable neglect in a unique context, the delegation situation. If the Pioneer approach to excusable neglect is valid in the delegation situation, it should result in rulings that bolster competent client representation by emphasizing the necessity of proper supervision by the attorney in a delegation situation. This Article will examine and critique the current state of the law under Pioneer in terms of (1) recent standards to which the trial courts are holding attorneys in situations where there has been an assignment of professional tasks to a non-lawyer, a resulting error, and an attorney claiming excusable neglect; and (2) the deference being shown by the appellate courts to the district courts as they exercise discretion regarding delegation situations in determining what neglect is excusable. If the Pioneer test has resulted in the district courts holding attorneys to standards which are too forgiving or lenient in terms of what constitutes excusable neglect in delegation situations, the trial courts may be encouraging attorneys to avoid the consequences of a failure to provide competent client representation by encouraging attorneys to expediently cry "excusable neglect" premised on what might be termed the "It was their error, not mine" defense. While always problematic in terms of professionalism, this scenario would be most disturbing ethically where the attorney failed to properly supervise a delegated task which clearly fell within the sphere of attorney responsibility. Such responsibilities might include, inter alia, understanding the law, or properly proofing documents drafted by a paraprofessional prior to filing, or the competent prosecution of a client's case.

Keywords: Excusable neglect, inexcusable neglect, Pioneer Investment Services Company, Brunswick, flexible understanding, balancing test, court, reputation, attorney, inter alia, delegation, representation, professionalism