Misconceptions concerning proposed rule on continuances and a call for comments
On May 26, the Board of Governors of The Florida Bar will vote whether to recommend that the state Supreme Court adopt proposed Rule of Judicial Administration 2.570.
It would require a continuance be granted when lead counsel needs to take parental leave and there is no substantial prejudice to the opposing party.
It is essential that members of the Bar and the community understand the substance of the rule and its possible implications for attorney-client relationships, families and gender equality. There is significant opposition to the rule and your comments are needed to fully inform the board’s decision.
Here’s the language of what is proposed:
A motion for continuance based on parental leave of the lead attorney in the case shall be granted if made within a reasonable time after learning the basis for the continuance unless substantial prejudice to the opposing party is shown. Three months shall be the presumptive length of a continuance granted for parental leave absent good cause for a longer time.
If the court denies the requested continuance, the court shall state on the record the specific grounds for denial. 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 profession is committed to parental leave and to the importance for attorneys to be able to balance work and family.
This rule provides a strong presumption that a continuance for parental leave, generally not exceeding three months, will be granted when the request for relief is made within a reasonable time after the basis for continuance is reasonably discernible. Substantial prejudice to an opposing party could be the need for emergency or time-sensitive relief that would be unreasonably delayed by a continuance, or the fact that many continuances already have been granted and the substantial rights of the parties may be affected.
There are many misconceptions about the proposed rule and its effect.
Three common arguments against the proposed rule are the situations this rule is intended to remedy do not occur; attorneys and firms will use the rule to gain strategic advantage; and the rule would be a disservice to clients.
However, there is anecdotal and statistical evidence supporting the need for the rule.
• There is a need for Rule 2.570 because continuances for parental leave are being denied without a sufficient reason.
While accounts of denials are difficult to collect, for obvious reasons, The Florida Bar Special Committee on Parental Leave in Court Actions report, an anonymous reporting form, and a letter to the board from the Jacksonville Women Lawyers Association provide some examples that illustrate why the rule is needed:
• A Jacksonville attorney was forced to go to trial more than 200 miles away from her home seven weeks after the birth of her child.
She worked for a small firm where no one else could serve the client at the level that she could, having been on the case from its inception.
When she went to trial, the court was reluctant to allow her breaks for breast pumping to maintain her supply of nutrition for her child.
Excerpts from the reporting forms:
• “At docket sounding, trial date for modification of family law case (my client was petitioner) was set for four weeks after my due date. It was objected to and magistrate denied it. Ended up giving birth a week early so trial took place when my daughter was five weeks old. I had only requested six weeks from my original due date so the continuance was not even that long.”
• “I have a friend, a single practitioner, who was set to give birth to her first child. The judge and opposing counsel were aware of her due date.
Then the judge set the civil trial in her matter to occur the week after she was due to give birth. She immediately requested a continuance, stating that she was due the week before.
This was the first trial set in this matter, so this was not a case of a matter being on the docket for years and years.
The male judge denied the continuance and forced trial. Thus, she was forced to come to the court a week after giving birth for a trial.”
• “I am a partner at a law firm and was lead trial counsel on a case in South Florida. I learned that I was pregnant in October 2013 and that I would be due in July 2014.
In January, the judge granted opposing counsel a continuance. In April, opposing counsel requested another continuance which, if granted, would mean a trial period in July.
I advised my client of the situation and the client made it clear that she wanted me to continue to represent her and as such, wanted me to object to the granting of the April continuance. (I will note that opposing counsel had been dragging his feet in this case.)
At the hearing on the motion for continuance, I objected to the granting of the motion and stated that if the judge was inclined to grant it that the trial period be set for October, after my return from maternity leave.
The judge was very annoyed at how this all affected his trial docket, stood up, stated that he needed to ‘calm down’ and left the bench. He added, ‘How do I know you aren’t going to come back from maternity leave and get pregnant again and we are never going to try this case?’ And then, ‘I don’t understand why you can’t assign this case to someone else.’
The judge ultimately granted opposing counsel’s continuance in April and left the trial date open. At the end of June, opposing counsel set the deposition of the most important witness in the case in another city. I objected because at that point my doctor will not let me fly.
The judge ruled that the deposition will go forward and that I could participate by phone putting my client at a significant disadvantage.”
• There is no evidence that firms will “game the system” to secure continuances under Rule 2.570.
The rule only applies to lead counsel. When asked during a recent presentation to the Jacksonville Women Lawyers Association, Florida Bar President Bill Schifino indicated he was not aware of any anecdotal evidence of firms using attorneys who need parental leave as lead counsel for the sole purpose of securing a continuance.
This is consistent with the American Bar Association’s 2015 report, “First Chairs at Trial: More Women Need Seats at the Table,” which concluded that only 24 percent of lead counsel are women.
Additionally, the rule does not stop the judge from denying a continuance where it appears that new lead counsel has been strategically assigned as long as findings are made in the order to explain the substantial prejudice to the opposing party. Presumably, the court could consider the number of extensions sought previously, who has historically represented the client, and the nature of the issue for trial in ruling on a motion for continuance.
The only change from the status quo is that the court would be required to make findings to support the denial. Findings would also make appeal of a denial more tenable.
• Rule 2.570 will help ensure clients maintain their right to choice of counsel.
The rule’s detractors have emphasized that the Rules of Judicial Administration exist to serve clients and that the proposed rule is being put forward to serve the needs of attorneys. This view does not take into account that the client always has a choice of counsel.
Many clients would not be well-served if their motion for continuance is denied and they are forced to retain new counsel for trial at the 11th hour. The years, months and hours of work and relationship building an attorney does to prepare a case for trial is not easily replaced by a new attorney reading the papers in the file. Clients recognize this and the Bar should as well.
Your input is needed for a fully informed decision by the board. Please provide comments in writing for the board’s consideration no later than May 15 to Krys Godwin, director, legal publication, at [email protected] or discuss the matter with 4th Judicial Circuit Governors Mike Tanner or Fred Franklin.
Jennifer Shoaf Richardson is an attorney with Jackson Lewis. She also serves as president-elect of the Jacksonville Women Lawyers Association.
Jamie Karpman is JBA Environmental and Real Property Law Committee co-chair and JWLA treasurer.