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Pregnant pause for Florida lawyers

When the trial for a case she had been working on for three years was set to begin two months before her due date, Deborah Baker-Egozi filed a timely motion for a continuance. U. S. District Court Judge Robert Scola, who was overseeing the trial, was sympathetic. “He said ‘Of course. How long do you need?’ ” the Miami litigator recalls. “I told him ‘I need three months.’ He said, ‘I’ll give you six.’ ”

Not all judges are so accommodating. Baker-Egozi and other Florida attorneys say it’s not unheard of for judges to deny continuances to pregnant litigators and tell them to find somebody to cover for them. In a 2015 anonymous survey of female members of the Florida Bar’s Young Lawyer’s Division, one lawyer said her case “ultimately had to be transferred to another attorney who knew nothing of the case and was put in a time crunch.”

Clients aren’t the only ones harmed by such actions, says Baker-Egozi. Forcing women to hand off cases when they need a brief delay in a trial can cause career setbacks — particularly concerning since women tend to flee the law profession “in droves” during their child-bearing years.

Currently, judges have broad discretion over whether maternity leave is a valid reason to delay a case. In deciding such matters, judges must balance one side’s need for additional time against the possible disadvantage to the other side resulting from a delay.

There are no statistics that track how often continuances are denied to pregnant lawyers, but anecdotal evidence suggests there’s a problem. That has prompted Baker- Egozi and other Florida Bar members to push for a rule that would require judges to grant continuances for parental leave, except in exceptional circumstances.

Craig Leen, city attorney for Coral Gables, says he proposed the new rule after learning of three recent instances in which Florida lawyers were denied continuances for maternity leave. As he began looking into the issue, other litigators confided that they hadn’t even sought continuances for maternity leave and paternity leave because they feared the rejection and “stigma” that often accompanies such requests.

“At that very important time when you want to be with your newborn or your newly adopted child, you should be able to spend time with them and not have the stress of having a case or a hearing,” says Leen.

“To me it makes perfect sense for a rule or a procedure.”

A rule like that would have helped Shari Tate. The Broward County prosecutor was hospitalized years ago with complications during her eighth month of pregnancy on the third day of a trial. Then-Broward County Judge Sheldon Schapiro told Tate to find a substitute, but when she explained that no one else was familiar enough with the case to step in, Schapiro threatened to dismiss the case. Tate ended up leaving the hospital against doctor’s orders to finish the trial.

More recently, an assistant public defender in Miami- Dade County was told to find another attorney to cover for her during a DUI trial when she asked for breaks to pump breast milk. “I’m not going to take a break just because you need to pump,” Judge Fred Seraphin told Marissa Glatzer last year. “There are other attorneys that can try a DUI case in your office.”

Brittany Maxey, a St. Petersburg patent attorney and current chair of the Florida Bar’s diversity and inclusion committee, says some female attorneys are so anxious about having to relinquish cases that some try to conceal their pregnancies as long as they can. “They don’t want clients to think, ‘Oh, will you have to hand the case off?’ It’s a big concern.”

The issue has sparked a vigorous debate within the Florida Bar. While Leen’s proposal has gotten unanimous backing from the Florida Bar’s diversity and inclusion committee, members of the rules of judicial administration committee vetoed the rule amid concerns that any sort of mandate would encroach on judicial discretion.

Critics also worry that law firms could abuse a mandatory rule and “game the system” by appointing pregnant attorneys to cases just to seek delays.

Another concern is that it could generate more backlogs in already clogged dockets.

Bill Schifino, president of the Florida Bar, says that the Florida Bar members he’s spoken to are “sensitive to the issue” but that the main point of contention is how to best implement a change — whether it should be addressed via a mandatory rule or a change in policy by the judiciary branch itself, through training and education.

At Schifino’s behest, the Florida Bar Board of Governors is putting together a task force to examine the issue and try to work out a solution.

As the parent of two children with autism, Leen says he is accustomed to having to ask for accommodations. “I’m not a woman, and I’ve never been pregnant, but I know the feeling when you’re asking for something you really need … and if it’s denied, it can really affect you and your career and your faith in the law. I just don’t think it’s right.”