Supreme Court hears parental leave arguments
There was no lack of advice when the Florida Supreme Court held oral arguments August 27 on a proposed rule governing parental leave continuances.
Nine different lawyers, including Bar President John Stewart, offered counsel on proposed Rule of Judicial Administration 2.570, which says a judge should grant a motion for parental leave for up to three months unless the opposing party can show substantial prejudice.
The rule, revised after initial comments, allows for exemptions for criminal, juvenile, dependency, involuntary commitment of sexually violent predators, and similar cases where there are rule or statutory deadlines for resolving the cases.
“The rule as proposed advances the Bar’s missions; one is promoting diversity and advancement in. . . our profession,” said Stewart, noting the proposed rule was unanimously endorsed by the Bar Board of Governors. “It advances the Bar’s mission to encourage health and wellness and to encourage work/life integration so physically and mentally healthy lawyers better serve their clients. And importantly, as has been addressed, this rule advances the best interests in putting the public and clients first in ensuring they get the lawyers of their choice.”
Stewart endorsed a suggestion from Justice Alan Lawson, made earlier in the oral argument, that a rule with a sunset provision could be adopted to provide better data on its impact and allow for drafting a perhaps improved rule.
“While no rule is perfect, not doing anything is also not perfect,” Stewart said. “Sometimes perfection is the death of progress.. . . I think a pilot program to establish data and metrics will help this court in ensuring that whatever rule is passed is appropriate for the lawyers and the citizens of Florida.”
Former Rules of Judicial Administration Chair Ed Sanchez and Orlando attorney Ted Greene argued against the proposed rule, saying the issue is best left to the discretion of judges, the rule places the interests of lawyers over their clients, and problems could be handled by additional training for judges and lawyers.
Susan Warner, a Rules of Judicial Administration Committee member, Jennifer S. Richardson, representing the Florida Association for Women Lawyers, Lara Bach, a member of the Young Lawyers Division Board of Governors, and Michele Coughlin of MothersEsquire, argued in favor of the rule, saying it would end discrimination against women lawyers who become mothers and that parental-leave problems are more widespread than many think.
Thomasina Moore, representing the Statewide Guardian ad Litem Program, and David Silverstein, past chair of the Juvenile Court Rules Committee, argued the proposed rule – even as it has been modified – still could cause delays in juvenile, dependency, and other cases that have statutory deadlines for resolution.
“Everyone agrees the court needs to do something. The [RJAC] committee believes the court should act and the Bar should act. We just don’t think this rule is the right way to do it,” Sanchez said.
He said RJAC supports parental leave, but thought the proposed rule was too close to a mandatory requirement for judges. He also argued an alternative to this rule would be to amend Bar rules and judicial canons to prohibit discrimination based on parental status and pregnancy.
Greene argued while everyone supports parental leave in principle, the proposed rule in some cases shifts the burden to the opposing party to show their case would be prejudiced by a delay.
“It takes discretion away from trial courts. I have found trial judges in this state get this, and most everything else, right. I would guess, and I haven’t seen any statistics from the other side, but I would guess only 2 or 3% of the trial judges get that wrong. Yet, for that 2 or 3%, we’re adopting a rule that would prevent the other 97 or 98% from using their discretion,” Greene said.
He also said the proposed rule fails to define a “lead” attorney who would qualify to seek a continuance.
Warner argued: “The court should adopt this rule because it will protect clients and provide legal clarity on this issue to judges.”
Although the opponents question whether clients would have to agree to the continuance motion, Warner said the general continuance rules mandate that clients approve of such motions.
Bach said the YLD Board of Governors also unanimously endorsed the proposed rule.
“Across the state, our constituents have told us this is a problem which is why we support the rule and we hope it will be adopted,” she said. “They have encountered significant opposition from opposing counsel and even the judiciary.”
She noted several examples had been provided to the court, including one lawyer who had a court appearance scheduled the same day as her C-section.
Women’s careers are hindered when they can’t appear at trials because of pregnancy and the inability to get a continuance, Richardson said, and clients are harmed because many times rather than retain another lawyer for the trial, they settle.
Moore and Silverstein said although the proposed rule contains language acknowledging the special needs of juvenile, dependency, and other cases, the verbiage isn’t strong enough.
Moore said the Legislature passed a law earlier this year setting the goal of resolving dependency cases within a year.
“The [proposed] rule reverses the order of preference that the legislation sets by putting the attorney over the child,” Moore said. “There are sound public policy reasons for restricting continuances in dependency cases.”
Justices peppered the lawyers with questions. Justice Barbara Lagoa asked about using interlocutory instead of certiorari appeals on continuance motions and whether other contingencies, such as medical emergencies or a death in the family, should be included.
Lawson raised the idea of a time-limited rule to gather information about its effects and Justice Carlos Muñiz inquired about how a lead attorney would be defined and how better education for judges and lawyers could be achieved.
The rule reached the court by a circuitous route.
The RJAC originally considered a recommendation from one of its subcommittees for a parental leave rule, and twice rejected it, saying it was a good idea but better left as a policy for the courts rather than a procedural rule. About the same time, the Bar’s Diversity and Inclusion Committee recommended a parental leave continuance rule.
Former Bar President Bill Schifino appointed a joint committee to consider the issue, which recommended a parental leave rule where the request would be presumed proper unless it would substantially prejudice the other side and the judge would have to put the reasons for denying such a motion in writing. If the other side would be prejudiced, the moving attorney would have the burden of overcoming that.
The Bar Board of Governors approved that proposal and submitted it to the court, but the justices denied the petition, saying only the court and Bar rules committees — not the board — could propose procedural rule amendments.
The court then asked the RJAC to submit a report on parental leave, with majority and minority positions. The committee did so with the majority recommending against a rule and the minority submitting a rule similar to the proposal from the Board of Governors.
The court invited comments on that rule, which led to adding the provision exempting juvenile, criminal, dependency, and civil sexual predator commitment cases, although that section also says, “The court should exercise any discretion available to it to reasonably accommodate a request for parental leave within the procedural, statutory, and constitutional constraints applicable to proceedings governed by this subdivision.”
The case is In re: Amendments to the Florida Rules of Judicial Administration — Parental Leave, Case No. SC18-1554.