Thursday, October 28

Attending a trial about to give birth and with a rest order: the legal vacuum that discriminates against lawyers

In April of this year Erola Gracia faced the final stretch of her pregnancy with discomfort and discomfort. During a checkup, her gynecologist recommended rest. With the medical report in hand, this 34-year-old lawyer from Barcelona presented a letter to suspend the trial that she had indicated shortly after. As the court did not respond, “we had to call every day to insist.” Ultimately, the answer was no. So Erola had to appear at the trial “with the client carrying my backpack; I couldn’t go by public transport, it was absurd.” Not long after, she gave birth. Her story is one of those accumulated by many lawyers in Spain: if they are self-employed, they do not have the right to maternity leave and, to this day, the rules that govern trials and procedural deadlines still do not consider this circumstance as a reason. suspension or postponement.

Spain faces the beginning of the course with a conciliation weighed down by the gender gap and the pandemic

Know more

In the letter that Erola Gracia presented to the court, she notified that she was in complete rest due to her pregnancy and that she had no partner who could replace her. “This trial was initially scheduled for 02/09/2021, and at that time, I would have had no problem attending. However, the Plaintiff requested the suspension because they were missing documents. Now it is impossible for me to go without putting in I risk my health and that of my pregnancy. I would appreciate it if you understand the delicate situation I am going through, “the document said.

However, the court did not suspend the trial: the judge argued that she could make use of the figure of substitution between lawyers. “I have an office with a colleague and no one else could go because only I am specialized in labor. But the client also looks for you as a lawyer for something, he wants you to do the trial,” explains the lawyer, who was about to begin his speech with a plea. “I thought I would point out that it was a shame that I had to get out of bed risking the life of my son, who seemed to be in the Middle Ages, but I think the judge would not have liked it.”

What counts is not an exception, but rather a common occurrence for lawyers. The president of the Equality Commission of the General Council of the Legal Profession, Marga Cerro, assures that lately the cases reported are more frequent, probably, she believes, because in the profession now there is more awareness about conciliation. “From the Council we collect that claim, it cannot be that in each court each judge does one thing. We are not covered by a clear law,” he says.

To date, the Civil Procedure Law contemplates the suspension of hearings “due to death, illness or absolute impossibility or maternity or paternity leave of the lawyer of the party requesting the suspension.” The problem is that the lawyers who work on their own, either as freelancers or in the mutual legal profession, do not have maternity and paternity leave as such, but rather a financial consideration. The “absolute impossibility” or illness would be, therefore, the precept in which the lawyers who cannot attend before or after childbirth could enter, something that, however, is interpretable.

“There is no place for suspension”

Mónica Gil, a 30-year-old lawyer who practices in Madrid, got the suspension by the hair. “I had a good pregnancy and I worked until the last weeks. I went to hearings, but I was afraid to go into labor or something would happen and the procedural deadlines would run away. I had two appeals to file shortly before giving birth, and I registered a request to extend the term until after the delivery, but neither of the two courts responded to me, “he explains. Given the lack of response, Gil presented the resources and a week later gave birth. Meanwhile, just in case, I sent a colleague the writings she was preparing by mail, “in case I went into labor at any time and I didn’t have time to present them.”

With her newborn daughter in her arms, attorney Mónica García requested the suspension of two hearings that she had less than a month after her delivery. “One of those courts told me no, it was the first time in my career that they denied me a suspension

With her newborn daughter in her arms, this August the lawyer requested the suspension of two hearings that she had less than a month after her delivery. “One of those courts told me no; it was the first time in my career that they denied me a suspension. In the end, my client had COVID-19 and was suspended for that reason,” he says.

It was the response of the other court, which also denied the suspension, which upset Mónica Gil: “There is no place for the requested suspension, in view of the time that has elapsed since the company became aware of the report, 03/18 / 2021, so it was possible to foresee the contingencies that are now alleged to request the suspension “. The lawyer emphasizes that this reasoning suggests that if a lawyer is pregnant she should not accept a case in case it has any complications. “I wonder if I have to tell all my clients that I am pregnant to see if they want to hire me or not. At the beginning of the pregnancy you do not know if you are going to continue or not, if you are going to have complications … When I gave birth it was When I began to request the suspensions of the trials that I had, I could not do it before, “complains this lawyer.

“I wonder if I have to say that I am pregnant to all my clients to see if they want to hire me or not.

Finally, Gil went to the Ombudsman of the General Council of the Lawyers, who intervened and got the postponement. The president of her Equality Commission also criticizes the response the lawyer received, “she is told secretly that since the trial was scheduled from March to August, since not having taken the case, they are telling you not to work because later you are going to have to give birth “.

The General Council of the Legal Profession and the Ministry of Justice have been negotiating changes for two years that allow the introduction of improvements in the conciliation of the profession in the legislation. “We ask that maternity and paternity for self-employed lawyers be grounds for suspension for, at least, the same weeks established by general law, the first six weeks after the fact. Now we are at the discretion of the lawyers of the administration of justice, of the judicial body or of the judges who want to suspend, because since it is not specifically included, it depends on the interpretation, “explains Marga Cerro. His demand includes that the Organic Law of the Judiciary, the Criminal Procedure Law and the Civil Procedure Law be modified so that all three make this right explicit in the same way. The request includes that pregnant lawyers can suspend their hearings at least ten days before their expected due date.

A trial one week after giving birth

María Benito is 31 years old, is a lawyer and lives in Cáceres. In December 2020, she received the summons for a trial: the date was two days after her due date. “I asked the midwife for a certificate in which the situation appeared because I was not going to be in a position to attend. I presented a letter with the certificate requesting the suspension precisely to avoid damages to all parties.” The court denied it and she appealed. There was no time to receive a new answer: on the Friday before her due date and also before the trial, María was admitted to the hospital with a ruptured bag. Once admitted and with the child in her arms, she received a new “‘no”.

In a check-up at week 28 I was told that I had symptoms of preterm labor and that I needed to rest and rest. I asked for the suspension of an accusation that I had days later and the court told me that I had to go and find me a fix.

The court urged its clients to go to another lawyer or to take one of the legal duties. “I told my clients to go and see in court that their lawyer could not go. There was no choice but to suspend him because I did not go and no one from the duty shift could take charge.” The trial was postponed for ten days and Benito appeared there, two weeks after giving birth. “The child stayed with his father. I had had a good birth and I was great but I could not have been like that and the situation was causing me more anxiety and work between resorting to this and that.”

The story of Raquel López Abellán, a 36-year-old lawyer who works in Murcia, dates back to 2013, when she became pregnant with her first child. “In a check-up at week 28 they told me that I had symptoms of premature labor and that I had to rest and have complete rest, they discharged me. This was at the end of November, I had an appointment at the beginning of December in Almería, I had I have to travel. I made a letter requesting the suspension of the signal because I was on leave due to the risk of premature birth. They told me no, that I had to go and find a fix “. After many conversations with the court and threatening to take the case to the press, the lawyer was suspended.

“I told them that they could not force me to make a two-hour trip in that medical situation nor could they force the client to seek other lawyers because they hire you and trust you. They suspended it ‘in extremis’ and told me ‘Well, he is going to go to the last of the queue’ and so it was, they pointed it out to me for a year or so later, “he says. It is frequent that the courts insist that lawyers resort to the figure of substitution by other lawyers, something that, the Council of the Lawyers emphasizes, is often not possible due to the relationship of trust that is established and also due to the damage economic that it can suppose.

The president of the Equality Commission of the General Council of the Legal Profession, Marga Cerro, defends the need to update the laws to guarantee the right to reconcile the profession and ensures that it is absolutely compatible with prompt and diligent justice. “It is impossible for the slowness of justice to be imputed or that the trials take longer than normal for maternity or paternity. For the amount of time involved in the processing of a procedure, the duration of a maternity or paternity leave does not It influences, just like vacations. The only ones who meet the procedural deadlines are the lawyers who, obviously, are the first to defend the interests of our clients and who would not make a decision that would harm them. ”