I am an attorney who represents children with disabilities and their families in special education matters. I am also a member of the Council of Parent Attorneys and Advocates (“COPAA”, www.copaa.org), a national organization of special education lawyers and advocates with the same client base. Recently, my colleagues and I have witnessed a substantial uptick in very aggressive opposition by school districts and their counsel to our clients’ exercise of their legal rights, namely trying to ensure access to a public education for children with disabilities.
I believe that such opposition by school district lawyers may be in conflict with attorney ethics rules.
Applicable Ethics Rules
Most state organizations that regulate lawyers have adopted the Model Rules of Professional Conduct (ethics rules, hereinafter abbreviated as “RPC”) or a similar version. The RPC guide the conduct of lawyers in their practice and representation of clients. “The Rules of Professional Conduct are rules of reason.” RPC, Preamble, ¶14.
Lawyers are public citizens. “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” RPC, Preamble, ¶6. “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” RPC, Preamble, ¶5. In addition:
“a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”
RPC, Preamble, ¶6.
Finally, a lawyer’s conduct should not be guided only by the rules, but also by basic morals. “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers.” RPC, Preamble, ¶7.
These sections of the RPC mandate that lawyers improve access to the legal system, particularly by those members of our society who may face obstacles in obtaining such access, e.g. those with disabilities.
Statistics of School-Aged Children With Disabilities
According to the 2010 U.S. Census, off the 53.9 million school-aged children (ages 5 to 17), about 2.8 million (or 5.2%) were reported to have a disability. A study performed by the National Institutes of Health (NIH) revealed that “out-of-pocket expenditures, particularly those for medical costs, for example, are higher among families with children with a special health care need.” That study further found that costs “average $30,500 a year per family with a disabled child.” Several other studies conducted by the Social Security Administration and the American Psychological Association indicate that families that have a child with a disability have a greater economic hardship than those families that don’t.
The obvious conclusion is that a family with a child with a disability has fewer financial resources to enforce its legal rights.
The Purpose of Special Education Law
The main law in special education is the Individuals with Disabilities Education Act, 20 USC §1400 et seq. (“IDEA”). When passing this law, the U.S. Congress made the following findings:
- “Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 20 USC §1400(c)(1)
- “the education of children with disabilities can be made more effective by . . . strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home” 20 USC §1400(c)(5)(B)
- “Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.” 20 USC §1400(c)(8)
Congress went on to state that the purpose of IDEA is:
to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities.
20 USC §1400(d)(1).
IDEA establishes ‘procedural safeguards’, which are designed to protect the legal rights of children with disabilities and their families. “Any State educational agency, State agency, or local educational agency that receives assistance under [IDEA] shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.” 20 USC §1415(a).
Those procedural safeguards include “an opportunity for any party to present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” 20 USC §1415(b)(6), and a method for filing a lawsuit to enforce those rights, i.e. a “due process complaint.” 20 USC §1415(b)(7). Indeed, recognizing that enforcing legal rights is often a cost-prohibitive venture for families, Congress ensured that such families may be reimbursed for attorney’s fees and costs incurred if they prevail in a lawsuit. 20 USC §1415(i)(3)(B)(i)(I).
Therefore, IDEA enables a child with a disability and his/her parents to enforce their legal rights and improves their access to the legal system.
How Aggressive Opposition Conflicts With Ethics Rules
I do believe that school districts are entitled to legal representation and to defend against frivolous claims. Indeed, IDEA guarantees these rights. See, e.g. 20 USC §§1415(i)(3)(B)(i)(II) and (III).
However, some school district counsel have employed what we in the litigation field refer to as “scorched Earth tactics.” This means that they will do anything to win their case even at the expense of a party’s legitimate rights. Examples of this conduct include: (1) filing a motion to dismiss a due process complaint (which is not provided for in IDEA or most administrative codes); (2) filing other motions that are expensive to contest; (3) making what was intended to be an informal process a very expensive, formal proceeding for the families; and (4) generally being very caustic to parents’ counsel.
In other words, the school district attorneys that employ these tactics are trying to make access to the legal system more difficult and more expensive for families of children with a disability. I believe that this is in direct and express conflict with the ethics rules cited earlier. It also seems counter to basic human morality (“personal conscience”).
I would respectfully request that counsel stop these tactics and work in a more collaborative manner in order to comply with the express purpose of Congress in special education cases. After all, these cases involve children with disabilities who are some of the most vulnerable in our society.