By Christine B. Courtney
Imagine that one of your elderly parents has a sudden fall and fractures a hip, resulting in a long and painful rehabilitation in a long-term care facility. You are your parent’s attorney-in-fact and health care agent, so you are the point person to navigate matters of care, scheduling, bills, and home upkeep. At the same time, you have a non-emergency court proceeding looming. Your client would prefer to delay the proceeding for a short time rather than transition the case to another attorney due to the additional expense and the client’s relationship with you. You are concerned about requesting a continuance from the court for a variety of reasons, although that option seems logical given the circumstances.
Why doesn’t Minnesota have a rule providing for a continuance in a legal matter to allow attorneys to take a reasonable family or medical leave?
In the summer of 2020, the MSBA convened a working group of attorneys and judges to draft amendments to various Minnesota rules that would allow attorneys to request a continuance of a court proceeding in the event of the attorneys’ temporary inability to represent the client due to a health condition; the birth or adoption of a child; or the need to care for a spouse, dependent, or parent who has a serious health condition.
“The default is to just offload your cases on to someone else so no one is ‘inconvenienced’ by the birth…. The reality is that it takes an unbelievable toll on a woman’s practice and professional trajectory. It forces women to take a step back and, I believe, adds to the incredible attrition rates of women in private practice.” – Survey respondent
Why do we need to change court rules?
During the fall of 2020, the MSBA surveyed attorneys on whether they had ever requested a family or personal leave from the court. Of those attorneys who chose to take the survey, some 13 percent had requested some form of a continuance from the court in an active case. In most instances, they indicated, co-counsel acquiesced and the court granted the request.
Unfortunately, that experience is not universal. As one attorney noted, “I asked for a hearing to be postponed because I had only given birth seven days prior and the request was denied.” Other attorneys reported significant pushback from opposing counsel. In one instance, opposing counsel refused to stipulate to amend the scheduling order: “Ultimately, I moved to amend the scheduling order and was forced to provide details of my pregnancy, due date, and leave plans to the [c]ourt. The [j]udge approved my request. The whole ordeal was humiliating, time consuming, and a waste of judicial (and client) resources.” While her amendment was granted, the process required to obtain the amendment illustrates the defects with our current makeshift system: It is inefficient for the court and for clients, and it is unduly humiliating and problematic for a professional to be forced to share personal medical details, sometimes on public record, in their clients’ cases.
“I opted not to ask for the continuance as my male partners expressed the view that I had been on ‘vacation’. “ – Survey respondent
In a profession where reputation is critical to your success on behalf of clients, special care is taken to maintain that reputation. In one instance where an attorney asked for a trial continuance, the trial judge denied the request. Reflecting on that experience, the attorney told us that she chose not to escalate the request to the chief judge because she “felt like if [she] took the request to the chief judge [she’d] get punished in the future by the trial judge.” Other attorneys expressed a similar reluctance to potentially prejudice their clients in front of a judicial officer.
More alarmingly, the survey demonstrated that a higher share of attorneys (26 percent of those who responded to our survey) chose not to ask for a leave, even when it was necessary for their own health or an important family matter. Some reported that it never occurred to them that they had the option to ask the court for a continuance; others believed that such a request would be denied.
Several attorneys worried that even asking for a continuance for a significant medical or family reason would cause the attorney to be viewed as “decidedly unprofessional.” Another noted a concern that asking for a continuance for a personal reason would result “in a report to the Board that I had failed somehow in my duties or in my professional responsibility.” Altering court rules to create a mechanism to request a continuance would normalize and protect this practice so that attorneys would not be vulnerable to this kind of attack.
Many attorneys responded that it is more appropriate to ask another attorney to fill in on the case while on health or family leave. Others pointed out the obvious detriments of this solution: “[The attorneys at my firm] are not fungible and each [has] knowledge of our own cases, not the others’.” Aside from the logistical challenge of passing an active court case to another attorney, one of the attorneys pointed out that a simple substitution of counsel “does not work… from the client’s perspective, and I think forcing women to explain that to clients exacerbates negative stereotypes that female attorneys already face compared to their male counterparts.”
“There are times when I think I just can’t keep pulling off this magic trick of being a litigator and a mother and wife and daughter of two elderly parents.” – Survey respondent
The sheer number of attorneys who felt proscribed from asking for a needed continuance (or who had to reveal personal medical information to substantiate a continuance request) is appalling. This makeshift system is entirely reliant upon the predilections of opposing counsel and the assigned judge. It opens the requesting attorney to potential and unnecessary abuse, embarrassment, or humiliation at the hands of the court or opposing counsel.
Proposed rule changes
The MSBA’s working group has drafted amendments that would allow attorneys to apply for a continuance of a court proceeding in the circumstances outlined above. The application process is designed to be simple, requiring no personal or medical information from the attorney, and to avoid wasting client and judicial resources on an extensive back-and-forth motion practice.
While attorneys need a mechanism to request a continuance, there are other issues that must be balanced: the clients’ right to a resolution of their matter and the system’s interest in protecting against abuse of this new provision. For that reason, the proposed amendments have a built-in process for challenging the continuance request. The proposed amendments also safeguard against impairing a substantial right of the client when alternate arrangements can be made. Of course, attorneys retain the option of working with co-counsel and substitute counsel in lieu of requesting a continuance through this rule change.
A call to action
At present, the proposed amendments have been submitted to the various sections of the MSBA for comment and approval. The bulk of the proposed changes can be found in Minnesota Rule of General Practice 17. There are related changes to Minnesota Rules of Appellate Procedure 126.02 and 134.02, and Minnesota Rule of Civil Procedure 26.04. Comments are due from each of the sections by March 31, 2021.
As you deliberate these rules, consider that our colleagues are first people: people with medical conditions, with children, with aging parents. These rule amendments provide another way that each of us can continue our work while also managing the other responsibilities in our lives. One attorney who wrote to us summed it up well: “We all need it at some point.”
We look forward to your feedback and to making progress for our profession in Minnesota.
CHRISTINE B. COURTNEY practices estate planning, probate, and elder law at the Courtney Law Offices in St. Paul, Minnesota. She is a member of the MSBA Parental Leave Working Group.