A new proposed rule governing parental-leave continuances is set to come before the Florida Board of Governors on Friday.
The rule is being considered by the Florida Supreme Court, which has asked the board for input.
If passed, new Rule 2.570 would create a presumption that pregnant lawyers should get continuances as needed, though judges would still maintain the final say. It would designate a presumptive three-month window for timely requests, except in cases where continuances would cause “substantial prejudice” to litigants.
“If the court denies the requested continuance, the court shall state on the record the specific grounds for denial,” the proposed rule states. “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 rule was unanimously approved by the Florida Bar Young Lawyers Division and the Florida Board of Governors in May 2017, but the Florida Supreme Court kicked it back on procedural grounds.
The high court will get input from the bar’s Rule of Judicial Administration Committee, which has previously voted 15-22 against the proposal.
As things stand, judges grant continuances to attorneys for a variety of reasons, but there is no specific maternity or family leave rule in place.
“It’s judicial discretion, primarily, and it’s balanced by an attorney’s obligation to be honest with the court and to not delay the administration of justice,” said Jan Jacobowitz, professor of law at the University Miami School of Law.
Denise M. Heekin, managing shareholder of Bryant Miller Olive’s Miami office and expert in labor employment law, said judges grant these requests only if attorneys show valid grounds.
“The rules for delaying cases and trials are not currently specifically geared towards maternity/paternity leave, family leave or even family emergencies,” Heekin said. “It is just a matter of establishing ‘good cause,’ hopefully getting the consent of opposing counsel, and having a judge be willing to grant the motion.”
But even if attorneys show good cause, judges might deny their motions under circumstances that would make it appropriate to grant continuance.
“Obviously, if there are speedy trial concerns or there’s children involved or elderly people and there’s a reason that the trial has to go forward, then somebody else has to try the case. But 99 out of 100 times, that’s not the case,” said Deborah Baker-Egozi, partner at Greenspoon Marder and member of the Florida Bar Board of Governors voting on the issue.
The vote would come two days after Shook, Hardy & Bacon suspended Miami partner Paul T. Reid until further review, following a wave of criticism from female attorneys over his objection to a continuance in a case involving a pregnant attorney. Reid’s suspension on Wednesday was effective immediately, and the firm removed his professional bio from its website.
Meanwhile, a range of law associations have demonstrated their support for the rule, including the Florida Bar’s Public Interest Law Section and the Florida Association for Women Lawyers, or FAWL.
FAWL issued a resolution in support of mandatory paternal leave.
“There is a stigma attached to both female and male lawyers asking for a continuance in anticipation of taking maternity leave,” the document reads.
The group’s president, Jennifer Shoaf Richardson, associate at Jackson Lewis in Jacksonville, hopes the high court adopts the rule.
“This a central issue for all women who practice law, especially with that first 10 years of practice also corresponding with the time, age-wise, usually, where you have children,” Richardson said.
The Jacksonville Women Lawyers Association sent a letter of support to the Board of Governors. The group added a personal touch—an anecdote about one of its member’s own experiences.
“She was denied continuance and forced to go to trial over 200 miles away from her seven-week-old newborn daughter in Jacksonville, whom she was breastfeeding,” the letter said of the member. “She worked for a small firm, had been working on the case since its inception, and it was not possible for another attorney to step into the case with the intimate knowledge of the facts. When she went to trial, the judge was reluctant to allow her breaks to pump in order to feed her child and maintain her supply. Effectively, her choice was to tell her client to get a new lawyer or go to trial.”
Richardson, as president of FAWL, has heard similar stories.
“A lot of it is implicit bias situations,” she said. “We all hold these biases and they’re very difficult to overcome.”
“A typical rollover of trial is a couple of months, so they’re just asking for [that],” she said. “It seems as though, because this is typically specific to women, there is a prejudice against this type of continuance.”
For law professor Jacobowitz, the proposed rule represents the start of what could be a long-term cultural shift.
“Brown v. the Board of Education didn’t eradicate segregation immediately,” she said. “But if you don’t even have the law, then you have more trouble getting people to accept a change in culture.”