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Board works to keep parental leave rule before the S. Court.

A suggested new procedural rule favoring court continuances for parental leave should be accepted by the Supreme Court as a "report" from the Bar Board of Governors rather than an out-of-cycle rule amendment submission.

That was the board's November 9 response to the court's earlier order asking the board to explain its authority to file an out-of-cycle amendment to the Rules of Judicial Administration, something under the RJA rules only the court and the Rules of Judicial Administration Committee have authority to do. The RJAC joined the board in making the report and recommendations to the court.

The board addressed the question of whether there is a way for a procedural rule amendment that has been rejected by a procedural rule committee to still reach the Supreme Court. It also said it should have called the filing a report rather than an out-of-cycle rule amendment request.

"[T]he board seeks an amendment to that scrivener's error and requests the court recognize and rename the document to be 'Report of The Florida Bar Board of Governors,'" the Bar said in the filing. "Second, the board and the RJA Committee urge this court to recognize the board has the authority to submit rule amendments or proposals if such are addressed but rejected by a [rules] committee because for these purposes, the board is 'The Florida Bar.' In the alternative, the board seeks the court to recognize the professional value of the proposed rule and adopt the rule through the court's own authority."

The parental leave rule had its genesis in a report from a RJAC subcommittee that presented both a mandatory and discretionary version of the rule at a January 2016 committee meeting. Although unanimously supported by the subcommittee, the overall RJAC rejected both versions and instead said it was a policy rather than a rules issue.

It did return the matter to the subcommittee for further work, and in June 2016, the subcommittee recommended the discretionary version of the rule. However, the full RJAC voted 25-5 against approval.

In the meantime, the proposed rule had been shared with the Bar's Diversity and Inclusion Committee, which unanimously supported the mandatory iteration of the rule.

Following the last RJAC action, then-Bar President Bill Schifino appointed a special committee, with five RJAC members and five Diversity and Inclusion members. That committee eventually recommended a new rule, which says there is a presumption a parental leave continuance of three months would be granted to the lead attorney in a case if the motion is made in a reasonable time. If the opposing party challenges the continuance by claiming "substantial prejudice," then the moving attorney would have the burden to demonstrate the opposing party is not harmed.

That passed the board by a 33-9 vote and was submitted to the court, which led to the show cause order about whether the board had the authority to submit a rule amendment on its own.

President Michael Higer appointed a committee of board members, and RJAC Chair Judson Cohen appointed a subcommittee of RJA members, and those two groups worked out the response that the Bar filed on November 9.

The filing made both substantive and procedural arguments on why the Supreme Court should act.

"The clients of trial practitioners could be greatly harmed if they have been working closely with a particular attorney and that attorney is forced off a case because of parental leave needs," the Bar argued. "When a client agrees to a continuance due to an attorney's parental leave, the court should not harm that client's choice by denying the continuance. If the attorney, the opposing attorney, or any of the clients feel there would be a harm or prejudice to any party due to the requested continuance, the requesting attorney has the burden of proof to show that lack of substantial prejudice."

The inability to get a continuance also could harm lawyers seeking certification in certain areas, since they are required to handle a certain number or trials or appellate oral arguments within a specified time, according to the Bar.

Procedurally, "[I]t is this court's decision whether to adopt a rule of court procedure or not. That decision falls squarely within the court's discretion. But independent of the relative merits of the proposed rule regarding parental leave, the question addressed in this filing is whether the court's door is open to receiving and reviewing proposed rules or rule amendments when a committee declines to lend its support to advancing such proposals," the Bar said. "Only the court has the authority to adopt a rule of court procedure, and that jurisdiction is mandatory as well as exclusive. The court has the ability to adopt any rule of court procedure that it deems appropriate."

The filing came in Case No. SC17-1611, In Re: Amendments to the Florida Rule of Judicial Administration--New Rule 2.570.

By Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Date:Dec 15, 2017
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