Ethical Considerations for Your Parental Leave

Congratulations! If you are planning a parental leave, there is undoubtedly a lot on your mind and on your plate. While it may not be at the top of your list, as a lawyer there are ethical considerations that impact parental leave as well.

Planning Your Leave: Give Notice and Plan for Next Steps

There is no right time for sharing the news with your employer and clients that you will be welcoming a new child to your family. Some people like to share their news right away, some at 12 weeks, others not until the third trimester. If you are fostering or adopting a child, you may have even less time to share your news. Keep in mind that, to the extent you are able, you must provide sufficient notice to ensure that your clients’ needs are covered.

For solo practitioners, this may require additional planning such as hiring freelance or contract lawyers to provide coverage during leave and ensuring you obtain your clients’ consent to any new counsel. Where appropriate, lawyers should also consider filing motions to continue deadlines until their return from leave. The ABA Young Lawyers Division has championed such extension requests proposing the following resolution that was presented at the 2018 ABA Midyear Meeting:

A motion for continuance based on parental leave of the lead attorney in the case shall be granted if made within a reasonable time after learning the basis for the continuance unless substantial prejudice to the opposing party is shown. Three months shall be the presumptive length of a continuance granted for parental leave absent good cause for a longer time. If the court denies the requested continuance, the court shall state on the record the specific grounds for denial. If the motion for continuance is challenged by an opposing party proffering a basis for a claim of substantial prejudice, the attorney seeking the continuance shall have the burden of demonstrating the lack of substantial prejudice to the opposing party.

It is a best practice to also prepare a transitional memo for each case or transaction including the procedural history, pertinent parties with contact information, key dates (including all deadlines), and expected next steps during your leave.

Being Responsive During Leave: Model Rule 1.4

Just like there is no one right time to provide notice of your leave, there is also no right way to be on leave. Some lawyers feel more comfortable checking in by phone or checking their email with some regularity. Others prefer to completely check out from work. Whatever you choose (or are required to do), you should ensure that you have an out-of-office message set up.

Pursuant to Model Rule 1.4, a lawyer is required to promptly respond to or acknowledge client communications. Therefore, any out-of-office response to clients should include notice of when a client can expect a response and contact information/directions for what a client can do if they need a response sooner than the expected return date.

Another option is to have a staff member or non-lawyer monitor your email during your leave and respond as needed (keeping in mind Model Rules 5.3 and 5.5 on non-lawyer assistance and the unauthorized practice of law).

Returning from Leave: Model Rule 1.16

Hopefully, you can return to work when you are ready (or as ready as you will ever be). If you are not ready and believe you may have postpartum depression or anxiety, which impacts both men and women, you may not only have a personal and medical reason but also an ethical obligation to extend your leave. Model Rule 1.16(a)(2) prohibits a lawyer from representing a client where “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” The ABA Standing Committee on Ethics and Professional Responsibility has concluded that impaired lawyers have the same obligations and that “mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.”

Before returning to work, lawyers who feel that they may be suffering from depression, anxiety, or any other condition that may impair their ability to represent clients should speak with an appropriately trained mental health professional and may find support and referrals from a local attorney assistance program.

While preparing for a new addition to your family, it’s also important to keep in mind the ethical considerations relating to your law practice. Taking appropriate steps early on in the parental leave planning process can help ensure you maintain compliance with ethical obligations to your clients.