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June 15, 2017
Board sends parental leave rule to the Supreme Court

By Gary Blankenship
Senior Editor

With a unanimous vote, a proposed procedural rule to allow attorneys to obtain three-month continuances for parental leave, as long as it does not cause “substantial prejudice” to opposing parties, has been approved by the Bar Board of Governors.

Acting at its May 26 Key West meeting, the board accepted the recommendation of the Special Committee on Parental Leave in Court Actions. The proposed rule now goes to the Supreme Court.

Quote That committee, by a 5-4 vote, recommended a new Rule of Judicial Procedure 2.570. It provides the lead attorney in a case can seek a three-month parental leave continuance that “shall be granted” if made in reasonable time and there is no substantial prejudice to the opposing party. If judges deny the motion, they must provide grounds for denial. If the opposing party objects on the grounds of substantial prejudice, the attorney making the motion has the burden of demonstrating there is no substantial prejudice to the opposing party.

Young Lawyers Division President Katherine Hurst Miller said both the YLD Executive Committee and Board of Governors unanimously supported the proposed rule.

“Our Young Lawyers Division board members and their spouses have been denied continuances because of parental leave. They have faced other opposition from opposing counsel and judges because of miscarriage, child birth, breast feeding,” she said, adding the YLD board received “overwhelming feedback” from young lawyers. “As much as we would like to think that most attorneys, most judges, would treat people fairly, it doesn’t always happen and our board sees a need for the rule.”

Miller added, “My maternity leave was the worst thing that ever happened to me in my career. I lost clients. I lost income. I lost status at my law firm. These things are deeply challenging things if you want to . . . practice law. Maternity leave is not a vacation; it is not a sickness or an illness; it’s a separate category.”

The rule would improve work/life balance for lawyers, she said, and end improper use of judicial discretion in cases in which the leave has been denied, even though clients and opposing parties had no objection.

“Let’s support our young parents in the profession,” she concluded.

Board member Jack Hickey said he was concerned parental leave could be used for “gamesmanship” in cases, but was satisfied limiting it to lead counsel and allowing for an exception for substantial prejudice to an opposing party addresses those issues, and he urged support.

Board member Paul SanGiovanni succinctly observed, “If men had to pass something through their body the size of a bowling ball, this would be the first rule of procedure.”

He added that trial attorneys are always eager for courtroom work, and making women choose to potentially be cross-examined in a continuance motion hearing about their pregnancy or give up a case is inherently unfair.

SanGiovanni said he’s not concerned with judges abusing their discretion, but “my position is, a woman should not be put in the position of having to argue that in the first place. The same for men who have to go home and take care of their wives and families.”

The genesis of the proposed rule came from actions by two separate Bar committees. The Diversity and Inclusion Committee passed a resolution calling for a parental leave rule. A subcommittee of the Rules of Judicial Administration Committee proposed a similar procedural rule, but the full committee rejected it. RJA members praised the goal, but contended it was more of a policy rather than a procedural rule issue.

Bar President Bill Schifino then appointed the special committee, with five members from each of the two committees. It ultimately recommended the new rule by a 5-4 vote. (When the missing member was polled, it became a 6-4 vote.) It was presented to the board in March (see story in the April 15 Bar News) in preparation for the vote at the May meeting.

The rule reads: “A motion for continuance based on parental leave of the lead attorney in the case shall be granted if made within a reasonable time after learning the basis for the continuance unless substantial prejudice to the opposing party is shown. Three months shall be the presumptive length of a continuance granted for parental leave absent good cause for a longer time. If the court denies the requested continuance, the court shall state on the record the specific grounds for denial. If the motion for continuance is challenged by an opposing party proffering a basis for a claim of substantial prejudice, the attorney seeking the continuance shall have the burden of demonstrating the lack of substantial prejudice to the opposing party.”

The approved comment for the rule is: “The profession is committed to parental leave and to the importance for attorneys to be able to balance work and family. This rule provides a strong presumption that a continuance for parental leave, generally not exceeding three months, will be granted when the request for relief is made within a reasonable time after the basis for continuance is reasonably discernible. Substantial prejudice to an opposing party could be the need for emergency or time-sensitive relief that would be unreasonably delayed by a continuance, or the fact that many continuances have already been granted and the substantial rights of the parties may be affected.”

Board members said they had been contacted by judges who opposed or expressed concerns about the rules. However, the Florida Conference of Circuit Judges Executive Committee voted to support a mandatory rule on parental leave, but said a formal resolution will come after board action on final language.

Second Circuit Chief Judge Jonathan Sjostrom, in comments endorsed by 13th Circuit Chief Judge Ron Ficarrotta, said the rule should be more “cautious” and proposed this language: “A court may grant, and shall closely consider, a motion for a reasonable continuance to accommodate parental leave. Lawyers shall confer and attempt to reconcile parental leave and the expeditious resolution of cases.”

Overall, the Bar received dozens of emails and letters from lawyers, judges, local bars, and other legal organizations, most voicing support for the rule.

[Revised: 12-16-2017]