Legal Memorandum: Excusable Neglect of Counsel in HI

Issue: In the context of a Rule 60(b) motion in Hawaii, can an argument be made that a client should not be penalized for a mistake and inadvertence of his attorney, thus satisfying the ‘excusable neglect’ standard?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Excusable neglect; Client's accountability
Jurisdiction: Hawaii
Cited Cases: 507 U.S. 380; 612 F.2d 938; 16 P.3d 827; 57 Haw. 73; 394 F.3d 850; 549 P.2d 1147; 350 S.E.2d 108; 623 P.2d 1283; 616 P.2d 1022; 370 U.S. 626; 2 Haw. App. 46; 479 F.2d 573; 1 Haw. App. 202; 635 F.2d 396; 625 P.2d 1052
Cited Statutes: HRCP Rule 60(b)(1); Bankruptcy Rule 9006(b)(1)
Date: 04/01/2013

Whether, in the context of a Rule 60(b) motion, a client should be held accountable for the mistakes or inadvertence of his trial counsel is far from certain.  The law cuts both ways.  On the one hand, “[t]he weight of authority has not recognized . . . carelessness of counsel to be excusable neglect justifying the invocation of relief under HRCP Rule 60(b)(1).”  Isemoto Contracting Co. v. Andrade, 1 Haw. App. 202, 205, 616 P.2d 1022, 1025 (1980); see also GLA, Inc. v. Spengler, 1 Haw. App. 647, 649-50, 623 P.2d 1283, 1285 (1981) (“the lower court decided that plaintiff’s attorney’s inattention was not excusable neglect and that plaintiff must suffer the consequences of its attorney’s neglect.  We find no abuse of discretion in either conclusion”).  On the other hand, the law generally supports a flexible application of the concept that comports with underlying policy objectives.  See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. Unit A 1981) (relieving client of attorney’s mistakes under “unusual circumstances” justifying client’s reliance on attorney’s inaction).

This latter point is illustrated in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993).  Despite suggestions to the contrary, Pioneer does not establish that a client is irretrievably bound by his counsel’s neglect.  Rather, Pioneer indicates that, while counsel’s conduct is a highly relevant factor in deciding a Rule 60(b) motion, it is merely one […]

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