Sometime not long before you are reading this, I became a father for the third time. And though sleepless nights with an infant are, by now, nothing new, this birth and this baby will be different. It will mark the first time—after 10 years of practice and two children—that I will be taking an actual parental leave.
To be clear, I don’t mean that as a boast. It’s embarrassing. When my first daughter, Harriet, was born, I left her and my wife to attend a mediation during my “leave,” only to return to the office when Harriet was a few weeks old to work deep into the wee morning hours to meet a motion deadline. I’m no prouder that when my daughter Frances arrived four years later, I spent more time wading through an appellate brief than with her. These are my regrets, and they stem from wrongheaded attitudes I internalized far too early in my professional life: I must be a lawyer first and everything else second. It’s taken me a decade to unlearn those lessons, or at least to put them into their proper context. Thankfully, I did. Just in time for one last try.
Sadly, I suspect I’m far from the only lawyer who has returned to practice too quickly out of a sense of professional obligation, or, more troubling, has had no choice but to return to a small or solo practice that could not manage without them.
But change could be on the horizon.
Let’s be clear that the United States lags woefully behind other developed countries when it comes to supporting new parents.1 Worse yet, the law is a remarkably unfriendly career when it comes to any kind of balance, let alone the demands that come with raising children.2 But as the legal professional continues to come to grips with issues of equity and wellbeing, large law firms have been falling over themselves trying to offer more generous leave packages.
Just this year, Minnesota’s own Dorsey & Whitney expanded its paid parental leave program policy from 10 to 15 weeks,3 and even this generous policy is no longer market-leading. My own firm, Barnes & Thornburg, launched a 16-week leave policy in 2019, and other large firms rolled out gender-neutral paid leave policies extending up to 16,4 18,5 and even 20 weeks.6
Still, as parental leave becomes the new normal at many law firms, courts have been much slower to take notice, leading to reports of one attorney being forced to bring her newborn to court after being denied a continuance, only to be accused of being a bad mother.7
Making leave possible
Despite parental leave becoming increasingly commonplace, legal practice poses significant challenges to lawyers welcoming a new child. Even where individual firms commit to policies that support new-parent attorneys, other professional demands make taking advantage of these policies daunting.
In my own practice, I have had to strike a delicate balance as I approached leave. Initially, there was the question of when to tell my partners, colleagues, clients, and the court. The timing of those discussions wasn’t always obvious. It feels odd to tell one’s managing partner about a pregnancy before your own mother—but re-staffing dozens of cases takes much longer than painting a nursery. Conversations with clients were even more delicate. If a trial could likely fall during my leave, should the client know before or after a key settlement conference? Certainly, clients need to know who will be trying their cases, but it could also exacerbate their anxiety and affect negotiations. And of course, each conversation increases the likelihood the news could spread in problematic ways. I might notify the court of parental leave in a scheduling conference, only to find out the news was shared with opposing counsel in another matter, who is already telling her client I’ll soon be off the case. But notice is just the beginning.
Even after talking with everyone who needs to know (a process that, by itself, leaves one a bit self-conscious), it’s time to transition files to colleagues; determine staffing and strategy for the next several months; reassure wary clients; and of course, refer out the new cases and clients coming in the door. And this isn’t just my experience. An examination of attorney parental leave in Florida put it this way:
The attorney preparing to take leave must determine the best time to discuss the issue with partners, staff, and clients, and the timing of these discussions is impacted by many factors, including trial strategy, discovery conferences, deadlines, extensions, and continuances. Attorneys often must consider when to stop taking on new matters and may be forced to seek substitute counsel to monitor their caseload. In a profession in which success relies heavily on client service and caseload, attorneys forced to seek substitute counsel due to parental leave are put at a professional disadvantage that can hinder careers. Workers face tensions when trying to balance their roles as professionals and parents, especially when there are adverse professional consequences to prioritizing family over work.8
Facing all these hurdles, it’s no wonder that so many parents, particularly mothers, choose to leave traditional legal practice, while many male attorneys simply forgo much of the leave they’re offered.9 Frankly, it’s a miracle lawyers have children at all.
Parental leave… of the court
In answer to these challenges, courts in some states have stepped up to enshrine parental relief into their rules of practice. In fact, 2019 didn’t just witness large law firms one-upping each other to support the new parents in their ranks. State Supreme Courts in both North Carolina10 and Florida11 explicitly amended their rules of practice to accommodate parental leave.
North Carolina’s newly revised Rule 26 of General Practice rules permit attorneys to designate themselves as unavailable for at least 12 weeks after the birth or adoption of a child, and the court “may not hold a proceeding in any case in which that attorney is an attorney of record.”12 A related amendment to the rules of appellate procedure provides a similar process to prevent oral arguments from being scheduled while an attorney is on leave.13 And lest any particularly hard-nosed opposing counsel consider using abusive discovery tactics to thwart the new rules, parties are also prohibited from noticing depositions during the leave period.14 To take advantage of the new rule, an attorney need only designate their proposed leave dates with the court, and attest that “adequate measures [have been taken] to protect the interests of the attorney’s clients” during the leave and that the leave “is not being designated for the purpose of interfering with the timely disposition of the proceeding.”15 In rolling out the new rules, Chief Justice Cheri Beasley touted the Court’s commitment to “strengthening families and supporting children.”16
Just a few months after North Carolina, Florida’s Supreme Court adopted its own parental leave rule after nearly four years of discussion and debate.17 Under the new Rule 2.570, courts are required to grant continuances of up to three months based on parental leave by a “lead attorney.”18
Florida’s rule does have its limitations. Unlike North Carolina’s rule, Florida’s rule requires the leave-taking attorney to seek a continuance, which has a presumptive maximum of three months—and no presumptive minimum.19 District courts retain discretion to deny the continuance for substantial prejudice or unreasonable delay of an emergency proceeding.20 And unlike the North Carolina parental leave rule, Florida’s does not apply at all in criminal, juvenile, or civil commitment proceedings that involve sexually violent predators.21 Like I said, it has its limitations.
But compared to Minnesota’s rule on trial continuances—which requires either an emergency or a stipulation reached shortly after trial is set—these new rules are positively progressive.22
Why Minnesota needs a parental leave rule
A rule governing parental leave is an idea whose time has come. As the bench and bar continue to focus on initiatives to advance equity and wellbeing within the profession, designated rules on professional leave speak to both.
First, clear parental leave rules address longstanding gender disparities in the practice of law. Submissions by the Florida Bar’s Board of Governors and the Florida Association of Women Lawyers detailed a long and troubling history of leave being denied to attorneys, and particularly female attorneys, with harsh results. One example included a female attorney forced to leave her seven-week-old infant to travel 200 miles to a trial after her continuance request was denied. The court was even “reluctant to allow her breaks to pump in order to feed her child and maintain her supply.”23 But while female attorneys may have no choice but to take some amount of leave, lingering assumptions about gender roles may discourage male attorneys from doing the same. In fact, numerous studies document the stigma faced by men taking parental leave, leading 80 percent of professional fathers in the U.S. to take less than two weeks of leave, while 5 percent take no leave at all.24 A survey of professional fathers identified workplace pressure as a significant factor.25 Formalizing court rules to account for parental leave can help minimize the adverse consequences for female attorneys taking leave, while encouraging more male attorneys to follow suit—increasing opportunities for female attorneys, with potential “positive effect[s] on female labor force participation, professional careers, and women’s wages.”26
Second, allowing lawyer-parents to take leave from their court obligations helps advance our professional commitment to wellbeing. Lawyers are people too; so are their children. And like all parents, new lawyer moms and dads must juggle personal and professional commitments, perhaps none so life-changing as caring for a new infant. And the benefits of leave are myriad, including decreased rates of post-partum depression and increased levels of parent involvement.27 Providing new parents some small amount of time away from professional commitments is simply humane. It is, quite frankly, the right thing to do.
But don’t take my word for it. Just last year, the American Bar Associations House of Delegates approved Resolution 101B urging all states to provide specific continuance procedures for parental leave:
Resolved, that the American Bar Association urges the enactment of a rule by all state, local, territorial, and tribal legislative bodies or their highest courts charged with the regulation of the legal profession, as well as by all federal courts, providing that a motion for continuance based on parental leave of either the lead attorney or another integrally involved attorney in the matter be granted if:
a) Consented to by all parties
b) Or if not consented to by all parties and the movant demonstrates:
- the motion is made within a reasonable time after the reason for the continuance has been discovered;
- there is no substantial prejudice to another party;
- the criminal defendant’s speedy trial rights are not prejudiced; and
- the judge finds that the request was not made in bad faith, including for purposes of undue delay.28
Minnesota could be next. As I write this, the Minnesota State Bar Association is convening a working group on parental leave and court rules to address this issue. I’d encourage all interested members to write the MSBA to express your interest or support. No need to write to me, though—I’ll be on leave.
MICHAEL P. BOULETTE is an attorney at Barnes & Thornburg LLP. He litigates high-stakes divorce and child custody cases, regularly handling multi-million dollar divorces involving closely held businesses, commercial real estate valuation, fraud and concealed assets, executive benefits, trusts, and inherited wealth, in addition to high-conflict custody cases with allegations of abuse, alienation, or mental health complications. His clients include business owners, public figures, entrepreneurs, C-suite executives, high-net-worth families, medical and legal professionals, and their spouses.
Notes
1 Gretchen Livington & Deja Thomas, Among 41 Countries, only U.S. Lacks Paid Parental Leave, Pew Research Center: Fact Tank (12/16/2019). https://www.pewresearch.org/fact-tank/2019/12/16/u-s-lacks-mandated-paid-parental-leave/
2 Leigh McMullan Abramson, “Parents in the Law: Is it Possible to be both an Attorney and a Committed Mom or Dad?” The Atlantic (9/17/2015). https://www.theatlantic.com/business/archive/2015/09/mom-dad-parent-lawyer/405742/
3 Kathryn Rubino, “Biglaw Firm Announces Generous Expansion of Parental Leave Benefits for Lawyers,” Above the Law (1/8/2020). https://abovethelaw.com/2020/01/dorsey-parental-leave/
4 Staci Zaretsky, “Biglaw Firm Wows All Employees with Brand New Family-Friendly Benefits,” Above the Law (8/8/2019). https://abovethelaw.com/2019/08/biglaw-firm-wows-all-employees-with-brand-new-family-friendly-benefits/
5 Kathryn Rubino, “Trend Alert: Another Biglaw Firm Expands Gender-Neutral Parental Leave,” Above the Law (7/29/2019). https://abovethelaw.com/2019/07/munger-tolles-expands-gender-neutral-parental-leave/
6 Staci Zaretsky, “Biglaw Firm Announces ‘Industry-Leading’ Parental Leave Policy,” Above the Law (8/6/2019); Kathryn Rubio, “Another Biglaw Firm Gets In the Improved Parental Leave Game,” Above the Law (7/8/2019). https://abovethelaw.com/2019/07/kelley-drye-gets-in-the-improved-parental-leave-game/
7 Staci Zaretsky, “Should Judges Delay Trials for Pregnant Lawyers,” Above the Law (7/21/2016). https://abovethelaw.com/2016/07/should-judges-delay-trials-for-pregnant-lawyers/
8 In re Amendments to the Florida Rules of Judicial Administration-Parental Leave, SC15-1554, Petition at 9 (9/14/2018).
9 Supra note 2; see also Vivia Chen, “Rate of Men Taking Paternity Leave Falls Again,” American Lawyer (7/24/2019). https://www.law.com/americanlawyer/2019/07/24/rate-of-men-taking-paternity-leave-falls-again/
10 Order Amending Rules of Appellate Procedure, (N.C. Sept. 2019); N.C. R. of Gen. Prac. 26; N.C. R. App. Pro. 33.1.
11 In re Amendments to the Florida Rules of Judicial Administration-Parental Leave, No. SC18-1554 (Fla. 12/19/2019).
12 N.C. R. Gen. P. 26(a), (b).
13 N.C. R. App. Proc. 33.1(a), (b).
14 N.C. R. Gen. P. 26(g).
15 N.C. R. Gen. P. 26(c), (d), (e).
16 North Carolina Judicial Branch, “Chief Justice Beasley Announces Rule Change to Strengthen Families and Support Children,” 9/10/2019.
17 In re Amendments to the Florida Rules of Judicial Administration-Parental Leave, No. SC18-1554 (Fla. 12/19/2019).
18 Fla. R. Jud. Admin. 2.570.
19 Fla. R. Jud. Admin. 2.570 (a), (b), (c).
20 Fla. R. Jud. Admin. 2.570 (e).
21 Fla. R. Jud. Admin. 2.570 (f).
22 Minn. R. Gen. Prac. 122.
23 In re Amendments to the Florida Rules of Judicial Administration-Parental Leave, No. SC18-1554, Cmts. from Florida Association of Women Lawyers at 2 (11/15/2018).
24 Brad Harrington, et al. 2014. The New Dad: Take Your Leave. Boston College Center for Work and Family (2014).
25 DOL Policy Brief, Paternity Leave: Why Parental Leave for Fathers Is So Important for Working Families. https://www.dol.gov/asp/policy development/paternityBrief.pdf
26 In re Amendments to the Florida Rules of Judicial Administration-Parental Leave, No. SC18-1554, Cmts. from Florida Bar Board of Governors at 12 (Nov. 15, 2018); Joanne Lipman, “Want Equality? Make New Dads Stay Home,” Wall Street Journal (9/28/2018). https://www.wsj.com/articles/want-equality-make-new-dads-stay-home-1538151219
27 Elana Lyn Gross, “How Paid Paternity Leave Can Help Close the Gender Pay Gap,” Forbes.com (5/14/2019). https://www.forbes.com/sites/elanagross/2019/05/14/how-paid-paternity-leave-can-help-close-the-gender-pay-gap/#3517ebdb50c1
28 ABA House of Delegates Resolution 101B (1/29/2019). https://www.americanbar.org/content/dam/aba/images/news/2019mymhodres/101b.pdf