Personal Injury Law

Does Error of Counsel Justify Setting Aside a Default Judgment?

By John A. Day

Not in the Seventh Circuit, it doesn't.   In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc.,  No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6).

The Court ruled as follows:

[W]e drew a clear line in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994) when we said that '[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent's deeds.' The rule is that all of the attorney's misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. See id. A lawyer who inexcusably neglects his client's obligations does not present exceptional circumstances. See Williams, 890 F.2d at 996. Hinterlong's actions, even with BMF's purported diligence, do not fall within the exceptions to the rule and do not rise to the level of  'exceptional' to warrant such 'extraordinary' relief.

BMF's beef is against Hinterlong, not the court's ruling on the case. Deception of a client becomes the liability of the client's attorney and not the client's opponent. See  Tolliver, 786 F.2d at 319 ('Holding the client responsible for the lawyer's deeds ensures that both clients and lawyers take care to comply. If the lawyer's neglect protected the client from ill consequences, neglect would become all too common.'). Since clients must be held accountable for their attorney's actions, it does not matter where the actions fall between 'mere negligence' and 'gross misconduct.' See 7108 West Grand Avenue, 15 F.3d at 635. 'Malpractice, gross or otherwise, may be a good reason to recover from the lawyer but does not justify prolonging litigation against the original adversary.'  Id. at 633. See United States v. Di Mucci, 879 F.2d 1488, 1496 (7th Cir. 1989) ('It seems clear to us that the law in this circuit is that an attorney's conduct must be imputed to his client in any context.') (emphasis in original).

Hinterlong was given lots of opportunities to file an answer on behalf of his client but failed to do so.  He apparently was not truthfully representing the status of the case to his client.

To be sure, this case has some outrageous facts.  But there is language here that could come back to haunt the lawyer who fails to answer a complaint because he or she thinks the judge will give them more time if the plaintiff lawyer files a motion for a default. 

Full post as published by Day on Torts on July 24, 2009 (boomark / email).