The State of Mandatory Parental Leave Continuances

At a minimum, attorneys must zealously represent clients. Likely driven by a genuine desire to ensure exceptional legal representation or simply today’s competitive legal market, striving to provide the best services possible often means going beyond the minimum requirement of zealous representation.  To exceed this standard, attorneys are regularly on call or engaging in some type of work after hours. We often put aside our personal needs, such as physical health, and the personal needs of our family with the intention of helping our clients. However, the birth of a child is one example for which an attorney cannot ignore personal health in exchange for extraordinary client representation or career development. 

Recognizing what the traditional attorney lifestyle has become in a digital world, the Florida Bar’s Board of Governors is helping to create a work and family balance for attorneys while protecting the rights of litigants. Addressing this matter on May 26, 2017, the Board of Governors unanimously decided to recommend the Florida Supreme Court adopt a new procedural rule governing continuances for parental leave. The new rule would require courts to grant a motion for continuance made by lead counsel if it is made within a reasonable time and does not substantially prejudice the opposing party. The committee notes suggest that parental leave time generally would not exceed three months. Further, “substantial prejudice” includes instances such as emergencies or other time sensitive situations.

Some have asked why the legal profession would require its governing body to enact another rule making professional courtesy mandatory. This begs the question of whether parental leave continuances are an acceptable matter for which to grant a continuance. President of the Florida Bar’s Young Lawyers Division Attorney Katherine Hurst Miller recently stated to the Florida Bar, “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.”

Prior to the Board of Governors’ unanimous vote, the Florida Bar’s Rules of Judicial Administration Committee rejected the rule change finding that judges should have the authority to exercise discretion when granting continuances. Therefore, a judge could deny a genuine request for parental leave even when neither party would be harmed.

Having this unprecedented written rule ensures attorneys are not ineffective or neglecting clients by requesting a parental leave continuance within the parameters of the rule. Instead of worrying about the inability to have parental leave, the rule assists in ensuring the attorney is mentally focused on the matter at hand when within the courtroom. Further, the written rule protects clients by ensuring a lead attorney who has extended significant hours preparing the case is the attorney who continues to represent the client. Currently, a lead attorney would be tasked with finding and attempting to bring up to speed another attorney to zealously represent the client.

Further the rule will aid in preventing women from being derailed due to giving up cases which they have diligently prepared. Hopefully, the mandatory continuances will remind law firms of the importance of parental leave; thus, removing one more barrier as an attorney negotiates parental leave with an employer or if the attorney is a solo practitioner. However, the rule may have a greater impact for attorneys practicing civil law than criminal due to constitutional time constraints, such as speedy trial. 

I appreciate the Bar’s efforts to protect the mental and physical health of attorneys. The rule further ensures clients, who might be negatively impacted by representation from an attorney unfamiliar with the case, can continue representation by counsel of their choosing. This rule will not only protect those seeking to use parental leave, but will also protect all litigants from being negatively impacted by a disingenuous or otherwise unreasonable request; protecting those who need it without harming those who do not.

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