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March 15, 2018
Parental leave rule revived

Court directs RJAC to file a report addressing continuances

The Florida Supreme Court has asked the Rules of Judicial Administration Committee to once again consider a parental leave continuance rule.

In a letter to the chair of the RJAC, the court noted that it recently dismissed, as unauthorized, a report from the Board of Governors proposing a parental leave continuance rule after determining that only a rules committee appointed by The Florida Bar is authorized to propose a procedural rule change directly to the court.

“Therefore, in order to provide the court with an opportunity to fully consider the parental-leave issue, the court would like your committee to file an out-of-cycle report addressing a parental leave continuance rule for the court’s consideration,” said the letter, signed by Clerk John Tomasino.

“Your committee’s report should include thorough explanations of the committee’s majority and minority positions on any proposed rule, as well as an explanation of the board’s position on the issue.”

The court has set a June 1 date for the RJAC to file its report. An RJAC subcommittee will begin addressing the issue at a March 7 meeting, after this News went to press.

The issue of parental leave first came up in the RJA Committee two years ago when one of its subcommittees proposed a rule requiring judges to grant continuances in cases in which the lawyers were expecting children. The full committee debated the proposal at two meetings and then rejected it both times, with members saying they supported the policy but thought it was best left to judicial discretion and was not appropriate for a procedural rule.

Meanwhile, the Bar’s Diversity and Inclusion Committee reviewed the matter and voted unanimously in favor of a continuance rule and then-President Bill Schifino appointed a special panel, with five members from each committee, to review the issue. That committee, by a 6-4 vote, recommended an amendment to the Rules of Judicial Administration, creating a presumption that expecting attorneys would be able to get a three-month continuance if they were the lead attorney in the case. A judge would have to give a reason on the record for rejecting such a motion.

The opposing party, under the proposed rule, could claim the delay would be prejudicial, and the burden would be on the petitioning attorney to prove there would be no such harm.

The Young Lawyers Division Board of Governors unanimously approved that recommendatioun, as did the Bar Board of Governors at its July, 2017 meeting, before submitting it to the court.

In October, however, the Supreme Court asked the Bar to explain why it had submitted the proposed new Rule of Judicial Administration when under the procedural rules only the court and the committee had authority to take that action.

President Michael Higer then appointed a special committee, made up of board members Margaret Mathews, Deborah Baker-Egozi, and Young Lawyers Division President Zack Zuroweste, to work with the RJAC on the matter.

After the committee extensively discussed the issue, RJAC Chair Judson Cohen also appointed a special committee to work with the Bar panel and to suggest a response for the RJAC to send to the court.

In November of last year, the board told the court it should accept the parental leave proposal as a “report” from the Bar Board of Governors, rather than an out-of-cycle rule amendment submission. In the alternative, the board suggested the court should recognize “the professional value of the proposed rule and adopt the rule through the court’s own authority.”

But the court said the board’s authority, under Rule 2.140, is limited to receiving copies of minutes reflecting the status of, and committee action on, rules proposals; considering and voting to recommend to the court the acceptance, rejection, or amendment of a rules committee’s proposals; receiving rejected rules proposals from proponents; and concurring with or rejecting a rules committee’s determination that a proposal warrants an out-of-cycle submission.

But the court found the rules do not authorize the board to file a “report” with the court proposing the rejected rule change.

[Revised: 03-19-2018]