Palm Beach County Pregnant Attorney Continuance Hearing
Lawyers sound off on parental leave continuances
One lawyer told of attending a hearing outside her normal circuit on a Thursday. At the conclusion, the judge asked her to prepare a document and submit it in five days. The lawyer responded that would be impossible; after a difficult pregnancy, she was scheduled for a Caesarian section that weekend.
The judge gave her 10 days to file the document.
But routinely granting continuances to expectant lawyers could harm the handling of criminal cases, where the speedy trial rule could be impacted. They may also affect juvenile and dependency cases, which have strict statutory deadlines and goals for handling cases where the welfare of children is at stake.
Family time versus the rights of defendants and the vulnerable dominated responses to the Supreme Court's call for public comment on a proposed Rule of Judicial Administration that would require judges to presumptively approve a 90-day continuance when lawyers in cases before them are expecting children.
The rule, pending at the Supreme Court, would require judges to grant the continuances unless the opposing side claims it would substantially prejudice its case. In those instances, the moving attorney would have the burden of showing there was no meaningful prejudice.
Many of the commenting lawyers said the proposed rule would be particularly helpful for solo practitioners and small law firms, which might have trouble finding attorneys to cover when parental leave is sought.
One such attorney is Tara S. Lynn of Oldsmar who experienced the difficult pregnancy mentioned at the start of this story. It was 2016 and she said the attorneys and judges in her circuit continually worked with her to circumvent the difficulties caused by her pregnancy.
"However, I very distinctly remember an incident that occurred in a different circuit — I attended a hearing on a Thursday," she wrote. "The court requested I draft a document and submit it to him in five days. I explained I was undergoing a Cesarean section that weekend and would not be able to comply with the deadline. In response, I was given 10 days."
Lynn met the deadline but observed, perhaps with a bit of understatement, that was the last thing that should have been on her mind.
"It is my understanding that a large portion of the licensed attorneys in Florida are solo practitioners and/or small firms," she continued. "It is imperative to provide us with a way to request time from the court when we expand our family. With this rule, it gives the request much more validity and requires the court to give the attorney reasonable time with the child; not 10 days."
St. Augustine attorney Jane West recounted an experience from about 10 years ago when she and her litigation partner in a small firm were preparing for a major trial against two other parties, which were represented by a total of eight male attorneys. By coincidence, she and her firm partner were both pregnant for the first time and both were due within three weeks of each other, at a time major pretrial work would be gearing up followed by the trial.
"Rather than respectfully accommodating our pregnancies, I got set for 22 back-to-back depositions during the month of July, a mere three weeks after my son was born," West wrote. "When we dared to request a continuance of the upcoming trial, much less a request to reschedule the depositions, we were met with a Motion to Expedite the trial and a Motion to Disqualify our firm from the case. The motion cited to a case where the lawyer was disqualified on the basis of her diminished mental competency."
It appeared, she added, that the opponents, rather than accommodating the dual pregnancies, were attempting to take advantage.
"Professionalism is NOT always afforded and when it isn't, exhausted mothers who spent the entire night nursing and in pain may simply not have the energy to stave off aggressive litigation tactics," West went on. "The party that ends up suffering here is not just the mother, but the infant who most assuredly picks up on the stress of its mother, the other siblings in the home, the client, and our judiciary as a whole for failing to act compassionately."
Delray Beach attorney Erin Deady wrote that lawyers like certainty in the legal process and the proposed rule will provide that. She noted her recent mostly normal pregnancy ended in an emergency c-section 10 days before her due date.
"I took a conference call that morning. I took a conference call two-days later while checking out of the hospital. I took my newborn to the office many days to continue a regular breast-feeding schedule. I have scheduled conference calls around nap times that just simply didn't result in a nap or stress-free call," Deady wrote. "The proposed rule provides a strong presumption in favor of granting such a continuance for a three-month period and it is warranted to avoid 'creative' arguments that somehow a pregnancy, delivery, and care for an infant child can be used intentionally to avoid attorney responsibilities or somehow be part of a case strategy."
It's not only women who have experienced problems with taking leave for the birth or adoption of a child.
Ft. Lauderdale attorney David Bear commented, "I know from firsthand experience that many in our profession do not respect the value of paternity leave. As a father who insisted on taking a modest two weeks off for each of my three children, I have experienced overt retaliation from a senior partner at a former firm and also casual shaming from partners. I share this only to illustrate that this ignorance is a very real dynamic within our profession. It would be foolhardy to assume that all judges have the wisdom and enlightenment that the aforementioned partners lacked."
The Florida Association for Women Lawyers, in a submission signed by President Jennifer Shoaf Richardson, listed several examples where lawyers had difficulty obtaining or were denied a continuance, adding it likely is a far more common practice than many think and doesn't happen with other types of continuance requests.
"Continuances are routinely granted without opposition for weddings, planned surgical procedures, football games, and Broadway shows. Yet, when months of advance notice of a need for continuance is presented by parents who are also trial lawyers, there seems to be a pattern of opposition and doubt as to the legitimacy of the request," FAWL wrote. "Parents should not have to forego lead counsel opportunities or lose their clients in the absence of substantial prejudice. Lawyer spouses should not be unnecessarily put under undo stress or concern that their significant other could miss the birth of their children in the absence of substantial prejudice. Clients should not have to pay for a new attorney to learn their case on the eve of trial — to the extent that is even possible — in the absence of substantial prejudice."
Mothers Esquire and other FAWL chapters endorsed those comments.
Constitutional Rights
The Florida Public Defenders Association said the proposed rule could affect criminal defendant constitutional rights under existing rules and particularly the Sixth and 14th amendments, and the right to a speedy trial.
"These rights cannot be overcome by parenting considerations. Although the proposed rule contains a 'substantial prejudice' proviso, defendants are entitled to be brought to trial within the time periods specified in Rule 3.191, regardless of inconvenience to witnesses, attorneys, or judges," the association said. "In the experience of FPDA members, absent a waiver of speedy trial, colleagues are substituted in pending cases for lead counsel who take parental leave. Failure to exclude criminal prosecutions from proposed Rule 2.570 will undermine this practice, cause avoidable delays in criminal cases, and imperil defendants' speedy trial rights."
If the parental leave rule is adopted, the FPDA recommended that it specifically exclude criminal cases.
Likewise, the Department of Children and Families said cases involving children's dependency should be exempted. The department noted that F.S. Chap. 39 encourages rapid resolution in dependency cases and that there should be no more than 60 days of continuances in any 12-month period. The department endorsed separate comments from the Bar's Florida Juvenile Court Rules Committee that the continuance rule should not apply in dependency and juvenile courts.
The Florida Guardian ad Litem Program raised the same points and agreed with the juvenile rules committee that if a continuance rule is adopted, it should exempt juvenile and dependency cases. It could be particularly cumbersome for the courts in dependency cases because any such motion might require responses from the GAL program, the Department of Children and Family, and any attorney ad litem in the case.
FAWL, in its comment, noted criminal and juvenile-related objections to the rule but said those problems are covered because they would constitute "substantial prejudice" that would justify denying the continuance.
"If, however, the Court is concerned by the possibility of confusion related to continuances in these areas, it could add a sentence to the comment that clarifies that violation of constitutional rights or Chapter 39 would constitute substantial prejudice," FAWL said.
Orlando attorney Theodore F. Greene III, who identified himself as a single father of three, took a different view of the rule, saying it forces the personal problems of attorneys onto the courts and litigants — and it's litigants, not attorneys, he added, who own the cases. Most attorneys and judges are willing to work with opposing counsel anyway, he added.
"I understand first-hand that the demands of parenting can be a challenge to balance against the demands of professional life," Greene wrote. "However, it can be managed — and it can best be managed — on an individual level by each attorney making their own decision about how they'll achieve the balance they seek. Imposing upon others to achieve balance in your own life (and that's what this proposed rule does) is also an act of selfishness."
As this News went to press, the RJAC filed a response to the comments recommending changes be made to accommodate the criminal, juvenile law, and related issues. Those will be presented to the Bar Board of Governors for its input at the board's December 14 meeting.
A story on that will be in the January 1 Bar News.
The proposed rule reached the court by an unusual process. The Rules of Judicial Administration Committee twice considered a parental continuance rule recommended by one of its subcommittees but rejected it. Most members supported the idea but said it was a policy issue better left to the courts. About the same time, the Bar's Diversity and Inclusion Committee considered the issue and endorsed it.
Then-Bar President Bill Schifino formed a special committee that recommended the adoption of a continuance rule nearly identical to the one before the court. The Board of Governors endorsed that proposal and sent it to the court. But the court rejected the filing, noting that only procedural rules committees, not the board, could propose rule changes.
However, the court followed that up by requesting the RJAC to submit a report, with majority and minority opinions, on the issue and to get the Board of Governors' opinion. The committee considered the issue in January and adopted a motion recommending no action, although a minority report supported the proposed rule. The Board of Governors supported the minority position.
The court, on its own motion, converted the no-action report into an out-of-cycle rules case and invited feedback from other procedural rule committees. It then solicited comments from Bar members, which were due by November 15, The RJAC had until December 6, as this News went to press, to respond to those comments.
All of the comments to Case No. SC18-1554 can be found on the court's website.
Source: https://www.floridabar.org/the-florida-bar-news/lawyers-sound-off-on-parental-leave-continuances/
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