Deadlines the Harsh Reality of Legal Malpractice

/ 28.Jan, 2013

As we have previously written, calendaring issues are the number one cause of legal malpractice actions, and good calendaring habits are the single most effective malpractice avoidance “best practices” available to attorneys.  Appellate deadlines are particularly thorny, as Pennsylvania attorneys were reminded by Newman Development Group v. Genuardi’s, 744 EDA 2010 (Pa. Super. 2010) (although subsequently ameliorated).  The United States Court of Appeals for the Second Circuit in New York, drove this home last week with its decision in Communications Network International v. MCI WorldCom Communications, 10-4588.  Attorney W. Mark Mullineaux, after moving from New York to Philadelphia to join the Philadelphia-based law firm, Astor Weiss Kaplan & Mandel (showing up in the blog for the second time this month), moved to reopen the time allowed to appeal, arguing his failure to update his email contact information on the Electronic Case Filing system, and thus receive notice of the judgment, was excusable neglect and no one was prejudiced.  The argument was made that Rule 4(a)(5) permits a district court to grant a motion for an extension to file notice of appeal where a party shows “excusable neglect or good cause.”  Rule 4(a)(6) allows the judge to reopen the time to file an appeal.  In 2010, Southern District Judge George Daniels granted the motion, but the Court of Appeals reversed.  The court determined Mullineaux was, as a  procedural matter, entitled to the relief, but the discretionary grant of relief was improper.  The court found: “The failure to receive Civil Rule 77(d) notice was entirely and indefensibly the fault of CNI’s counsel.”

Calendaring includes making certain your contact information is current and correct, and that dockets are followed.  The court specifically noted that in agreeing to electronic filing and notification, Mr. Mullineaux agreed to update his information.  Legal malpractice avoidance requires attorneys make sure they remain informed about the cases they are handling, especially as orders and judgments are entered.

Josh J.T. Byrne, Esquire

But a divided U.S. Court of Appeals for the Second Circuit yesterday restated its “hard line” policy on excusable neglect for missed filing deadlines and said it was Mullineaux’s fault for failing to correct his contact information to reflect his move to Astor Weiss Kaplan & Mandel in Philadelphia