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Takeaways from Minnesota’s New Presumptive Personal Leave Policy

Vincent X. Cheng and Andrew Jackson


  • The Minnesota Supreme Court issued an order for a presumptive personal leave continuance for attorneys in civil cases, effective September 1, 2024, as a two-year pilot program.
  • The rule grants an automatic 90-day continuance for various personal reasons without specifying the reason, and objections can be raised but the continuance remains during consideration.
  • The rule has sparked controversy due to concerns about potential misuse by attorneys to manipulate deadlines and the impact on clients and court schedules, despite safeguards like ethical obligations and the objection process.
  • The policy aims to support lawyers' well-being and equity in the profession, driven by the Minnesota State Bar Association, with the pilot period allowing for future adjustments based on its effectiveness.
Takeaways from Minnesota’s New Presumptive Personal Leave Policy Chernetska

On April 30, 2024, the Minnesota Supreme Court issued an order establishing a novel presumptive personal leave continuance for attorneys in civil cases. This order, and a parallel rule for appellate courts, goes into effect on September 1, 2024, under a two-year pilot program.

Under these rules, a continuance of up to 90 days is automatically granted to an attorney applying for the following reasons:

  • Health condition preventing them from representing the party
  • Birth or adoption of a child
  • Need to care for or attend to a spouse, household member, dependent, or family member with a serious health condition
  • Death of a family or household member

Critically, the attorney does not need to specify the reason for application. Another party can object, but the continuance remains in effect while the court considers the objection. Finally, while there are case types to which the rule does not presumptively apply (e.g. orders for protection or criminal cases), the court may make exceptions for even excluded cases.

The rule is not without controversy. The civil rules committee expressed concerns about gamesmanship—specifically, that attorneys might exploit the rule to manipulate deadlines. A lengthy dissent within the decision echoed these concerns, arguing that the rule disproportionately favors the personal concerns of lawyers over clients, especially in multi-party litigation.

This concern invokes the balancing act at the heart of the issue: ensuring that lawyers can practice effectively and under humane conditions, but not at the cost of their clients, their opposition, and their judges’ autonomy in controlling their dockets.

Accordingly, this Practice Point focuses on two key areas: the policy considerations animating the rules’ passage and criticism of the rules.

Policy Considerations

Both rules are an outgrowth of an initiative led by the Minnesota State Bar Association (MSBA) that was originally focused on assessing parental leave policies. MSBA believed that making the policy presumptive would help remove the stigma in requesting such a leave. This, in turn, would foster greater equity and diversity in the legal profession.

The presumptive aspect of the new personal leave policy reflects similar privacy considerations. The policy only requires that an attorney attest that one of the covered events exists; specifics of the circumstances are otherwise unnecessary. This avoids the issue of attorneys being deterred from requesting continuances out of fear of disclosing personal information.

Furthermore, the court argued that improving the well-being of lawyers would produce benefits for their clients by “improv[ing] competence and reduc[ing] the risk of malpractice.”

The court argued that the dissent’s concerns about gamesmanship were already addressed by several extant safeguards:

  • the attorney’s ethical obligations;
  • the requirement of informed client consent to the continuance; and
  • the objection process, which permits an objection within 14 days of filing and a ruling, without a hearing, within 21 days of its filing. The court can then modify or deny the continuance “upon proof of substantial prejudice or extraordinary circumstances.”


The dissent argued that the automatic rule, in expanding what was originally only intended for parental leave, would be overall detrimental to clients and judges.

First, the dissent argued that the new policy is not supported by empirical evidence—nothing was provided to substantiate the argument that an expanded presumptive leave policy would effectively combat the issues.

Secondly, the dissent argued that the objection process was not, in and of itself, a sufficient check against gamesmanship. The leave remains in place while the objection is evaluated—thus, leaves requested close to scheduled trials can cause extended delays, even if an attorney wins their objection. These issues are compounded in cases with multiple substantially involved attorneys.

Finally, the dissent argues that the burdens of this policy fall heaviest on civil trial courts—both for the parties involved, as well as for district court judges. Greater delays reduce the ability of courts to hold speedy trials. This then incentivizes the resolution of urgent issues through alternative dispute resolution (especially, as the dissent argues, for parties with resources). Thus, parties have less access to civil jury trials and judges have less control over their schedules.

Ultimately, as the majority and dissent both acknowledge, the actual impact of the rules is hard to predict. As such, the two-year pilot basis functions as a final means of ensuring that the rule has another built-in opportunity for modification before it is either fully adopted or discontinued.