9th Circuit Gives Boies Firm Reprieve Over Mistake Termed 'Lawyer's Nightmare'

It was an embarrassing mistake for famed litigator David Boies, one that turned into what the 9th U.S. Circuit Court of Appeals called "a lawyer's nightmare." On Monday, an en banc panel decided 8-3 to give Boies a reprieve. The error -- a missed filing deadline -- was made by a calendaring clerk at Boies, Schiller & Flexner. But the case became a debate about how much and what kind of work lawyers should delegate to non-lawyers.

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It was an embarrassing mistake for famed litigator David Boies, one that turned into what the 9th U.S. Circuit Court of Appeals called “a lawyer’s nightmare.” Monday, an en banc panel decided 8-3 to give Boies a reprieve. The error — a missed filing deadline — was made by a calendaring clerk at Boies, Schiller & Flexner, in connection with a long-running dispute between Hall of Fame jockeys Laffit Pincay Jr. and Chris McCarron and their former investment advisers, Vincent Andrews Management Corp. But the case became a debate about how much work lawyers should delegate. Boies’ firm represents Vincent Andrews Management and planned to file an appeal after the jockeys prevailed in trial court in a lawsuit alleging financial misconduct. But Boies’ employee thought the deadline to file an appeal was 60 days instead of 30. A district court ruled in favor of Boies, saying the mistake was “excusable neglect.” Last year, a divided 9th Circuit panel rebuked the firm for letting a nonlawyer do a lawyer’s job. The 9th Circuit decided to rehear the case, clearly concerned about creating a per se rule forbidding lawyers from delegating work to their staff. Rather than set hard and fast rules, Monday’s ruling gives courts discretion to determine mistakes. Chief Judge Mary Schroeder wrote the majority opinion. She was joined by Judges Andrew Kleinfeld, Sidney Thomas, Barry Silverman, Ronald Gould, Marsha Berzon, Johnnie Rawlinson and Consuelo Callahan. “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,” Schroeder wrote. But Judge Alex Kozinski, who was joined by M. Margaret McKeown and Pamela Ann Rymer in dissent, would have none of it. “While delegation may be a necessity in modern law practice, it can’t be a lever for ratcheting down the standard for professional competence,” Kozinski wrote. “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 error here — whether made by the lawyer, the calendaring clerk or the candlestick maker — is inexcusable.” Those words echoed the previous three-judge panel decision, written by Senior Judge John Noonan Jr. “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 … is not acceptable for our profession,” Noonan wrote. Pincay’s lawyer, Neil Papiano of Los Angeles’ Iverson, Yoakum, Papiano & Hatch, said he planned to appeal to the U.S. Supreme Court. “[Monday's ruling] is at odds with other circuits. I would expect that the Supreme Court would want to bring all the circuits together,” Papiano said. Boies could not be reached for comment. The case is Pincay v. Andrews, 04 C.D.O.S. 10158.

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