Commercial Litigation and Arbitration

Limits on Equitable Tolling — Exceptions to Client Responsibility for Lawyer Negligence — Gross Negligence vs. Negligence (Good Quote)

Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012):

A petitioner has the burden of establishing his right — if "right" is not too strong a word in the area of equity — to equitable tolling. He must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue. Chavez v. Sec'y. Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). And the allegations supporting equitable tolling must be specific and not conclusory. Id at 1061. The Supreme Court did say in Holland that although equitable relief is flexible and all the facts and circumstances must be considered, we should "draw upon decisions made in other similar cases for guidance." Holland, 130 S.Ct, at 2563. We take that statement to mean this is not an area free of rules of law, governed entirely by the chancellor's foot, but we are instead bound by precedent to the extent that there is precedent.

Footnote 2. And it is a good thing that rules of precedent apply here. Even Blackstone, who was something of a fan of equity, warned that:

[T]he liberty of considering all cases in an equitable light, must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

1 William Blackstone, Commentaries *62; see also 1 Joseph Story, Commentaries on Equity Jurisprudence § 19, at 16 (13th ed. 1886) ("If indeed, a Court of Equity in England did possess the unbounded jurisdiction which has been thus generally ascribed to it... it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power, that could well be devised.").



II. Exceptions to Client Responsibility for Lawyer's Conduct

Death row inmates should not be precluded from having their federal claims reviewed because of their lawyer's negligence. Exceptions to the principle that all clients are responsible for the negligence of their lawyers exist elsewhere in the law. For example, when more important countervailing values are at stake, various rules of civil procedure provide courts with discretion to excuse procedural defaults in cases of lawyer negligence. See, e.g., Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978) ("[T]he sanctions for attorney neglect should be borne if at all possible by the attorney himself rather than by his client."); Jackson v. Washington Monthly Co., 569 F.2d 119, 123, n.23 (D.C. Cir. 1977) ("[A] sound discretion hardly comprehends a pointless exaction of retribution. Dismissals for misconduct attributable to lawyers, and in no [way] to their clients, invariably penalize the innocent and may let the guilty off scot-free.").

Rule 60(b)(1), for example, provides relief from a final judgment for excusable neglect, which can "encompass situations in which the failure to comply with a filing deadline is attributable to negligence." United States v. Davenport, 668 F.3d 1316, 1324 (11th Cir. 2012). Similarly, Rule 55(c) has been applied to give a client relief from the entry of a default that was caused by the negligence of an attorney under the "good cause standard." Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 195 (6th Cir. 1986). Exceptions such as those available under Rules 55(c) and 60(b) exist because, unlike a pure principal-agent relationship, most clients are not able to exercise perfect control over their lawyers.

Likewise, under Rule 11, the agency principle is put aside in order for courts to direct sanctions toward lawyers — and not their clients — when clients are not implicated in or aware of the offending attorney error, bad faith, or negligence that fall within a lawyer's professional zone of control. Under Rule 11, "[s]anctionable conduct by a party's counsel does not necessarily parlay into sanctionable conduct by a party." Byrne v. Nezhat, 261 F.3d 1075, 1123 (11th Cir. 2001 ) (citation omitted).

And under Rule 37, a district court has broad discretion to apportion sanctions for discovery abuses between lawyers and their clients. Devany v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993). For example, Rule 37 is not construed to authorize the sanction of dismissal "because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner." Societe Internationale pour Participations Industrielles et Commerciales. S.A. v. Rogers, 357 U.S. 197, 212 (1958). This Court has held that "[a] party's simple negligence or other action grounded in a misunderstanding of a court order does not warrant dismissal." Equal Employment Opportunity Comm'n, 693 F.2d 1353, 1357 (11th Cir. 1982). See also Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (stating that "[violation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal."). ***

However, to grant equitable tolling only in cases of complete lawyer abandonment or something akin to gross negligence does not go far enough. See Holland, 130 S. Ct. at 2567 (Alito, J., concurring in the judgment) ("Allowing equitable tolling in cases involving gross rather than ordinary attorney negligence would not only fail to make sense in light of our prior cases; it would also be impractical in the extreme.... [I]t has been aptly said that gross negligence is ordinary negligence with a vituperative epithet added.").

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