A rules change for the legal profession went little noticed outside the legal press, but could make life and work vastly better for women who represent clients before the courts.
The new rule, handed down by the Florida Supreme Court on Dec. 19, creates a presumption that attorneys arguing lawsuits are entitled to continuances – that is, procedural delays – to accommodate parental leave when they give birth or adopt.
“This rule will remove an obstacle to anyone who wants to be both an engaged parent and a successful litigator,” Kimberly Hosley of The Orlando Law Group, president-elect of the nonpartisan Florida Association of Women Lawyers, told the Florida Phoenix through email.
Men will benefit as well as women, she said. But the rule is especially important for women.
“As studies show, women are not given the opportunity to be lead trial counsel at the same rate as men. Some think that is because of the fear that their lead counsel could potentially be unavailable at the time of trial due to childbirth or maternity leave,” Hosley said.
“This rule will hopefully help to alleviate those concerns and help open doors for more women to be chosen by their law firm leadership to be lead trial counsel on cases.”
Women comprise 39 percent of the nearly 90,000 attorneys eligible to practice and in good standing, according to data kept by The Florida Bar. Those numbers represent all attorneys, not just litigators.
The rule change applies to civil litigation, and would apply independently of any parental leave provided by the attorney’s employer. Florida law doesn’t provide for family leave, but the federal Family and Medical Leave Act provides for up to three months of unpaid leave.
The new rule “requires the court to use existing discretion to provide a reasonable accommodation when a parental-leave continuance is requested,” the court said.
The request would need to be made within a reasonable time after the attorney learns a blessed event is pending, or when a court date is scheduled that might conflict with the birth or adoption.
“Three months is the presumptive maximum length of a parental-leave continuance absent a showing of good cause that a longer time is appropriate,” the rule stipulates. Opposing counsel could object if they can demonstrate their clients would suffer “substantial prejudice.”
If that happens, the judge would have to weigh which party would suffer more if he or she grants the delay.
“Something also worth noting is that trial dates are routinely continued for all kinds of reasons in civil litigation,” Hosley said. “Trial continuances happen all the time. So a trial continuance itself is nothing new to litigators.”
Jennifer Shoaf Richardson, a former president of the association, said: “The rule also benefits clients, who will not be forced to hire new counsel on the eve of trial, and trial judges, who will now have a consistent rule to apply.”
The rule excludes lawyers working in criminal or juvenile court, or those working on cases involving the involuntary civil commitment of sexually violent predators. But they might still qualify for leave under an existing rule, the court said in a unanimous unsigned opinion, presuming the lack of some other procedural bar.
“Those types of cases have some important statutory and constitutional rights timing issues that cannot be delayed,” Hosley said.
That existing rule holds: “Continuances should be few, good cause should be required, and all requests should be heard and resolved by a judge.”
Failure to promote women to partnerships out of fear, real or imagined, that their role in child-rearing renders then unreliable, has been a continuing problem within the profession.
“According to the ABA Commission on Women, women have made up approximately 45 percent of associates hired by law firms for several years. However, women are still only 22.7 percent of partners in law firms and only 19 percent of equity partners,” she said. An equity partner owns a piece of the firm and is entitled to a share in the profits.
“So removing barriers such as the inability to continue a trial date briefly for parental leave is an important step in changing those ratios,” Hosley said.
Here are two more data points: In a 2018 survey conducted for the state bar, 39 percent of women practicing law in Florida said they’d still join the profession if making the decision again, compared to 52 percent of men. Forty-seven percent of the attorneys surveyed said their employer offered maternity leave but only 28 percent were eligible for paternity leave.
In an interview with the Florida Phoenix last fall, Richardson cited the then-proposed rule change as an example of the value of appointing women to the state high court – which, besides deciding cases, sets procedural rules governing Florida’s courts.
At that time, Barbara Lagoa still served on the court – she’s since been elevated to the 11th U.S. Circuit Court of Appeals along with former Justice Robert Luck. The Florida Supreme Court now comprises five men. However, women outnumber men among nine proposed replacement justices under consideration by Gov. Ron DeSantis.
Women shoulder an outsized burden of parental duties, Richardson noted during the interview.
“While every member of the court is a parent, of course, Justice Lagoa has had that experience in a different way,” she said.