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School District Lawyer Tactics May Violate Ethics Rules

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.

 

15 Responses to “School District Lawyer Tactics May Violate Ethics Rules”

  1. Jana Barnett

    You make a powerful argument. I hope that School District attorneys read your blog, and reflect. Thank you for your work.

  2. In my case, the school systems lawyer told the school principal to get my 12 yr old classified as violent to get her out of the school. They fast tracked the IEP and got annoyed when I resisted their plan to remove her into the “special program” where she wouldn’t be challenged, but instead just shunted aside and babysat. My daughter has anxiety and ADD. When the principal called the cops on her the second time we gave up and put her in private school.

  3. This is so true. Thank you for your personal efforts to increase access to the legal system for families that might not otherwise be able to participate. You are a great example of someone who loves the ethics of your profession.

  4. Lea Sullivan

    Thank you for this information.

    As of yesterday the High School principal sent an email stating that if I bring an advocate to either of my son’s ARD’s, they will have their attorney present – in the best interest of everyone.

    Just another dog and pony show featuring a gorilla.

  5. Cindy Duch

    Not only is access to attorneys not available to many families, once they do get the access, there is HORRIBLE behavior on the part of the school district’s attorney. Absolute disrespect of not only the process, but of the parents , the parent’s attorney, the hearing officer (talking over him, laughing during proceedings) and staff of the district. This person had no humanity and made a joke of the process. Very disheartening. Thank you for this article and presenting to others what due process is supposed to look like, and the fact that, in most cases, the issues should not even go as far as due process.

    • Paula Rule

      Well, Cindy, since you and I work the same area, I know who you are talking about and couldn’t agree more! No reason to add so much stress to a family that is already so much more stressed than the average family. It is very disheartening. I would add, however, as an aside, that if schools were fully funded the way they should be, a lot of this would go away. We fool ourselves when we think this is not about money. If districts had the funds they needed, I think you would find many more cooperative districts. They, too, are between a rock and a hard place…… But bullying by school district attorneys is NOT the answer and must stop.

      • schoolkidslawyer

        I agree to an extent with you Paula. However, the expense of involving the school district attorneys is not justified when the requested services are much likely less expensive. That also isn’t counting if the school district has to pay the parents’ attorney’s fees too.

  6. Susan Moyer

    Interesting article….are you suggesting we should go ahead and file ethics violation complaints against the school district’s attorney if we have experienced the type of treatment you describe in your article?

    • schoolkidslawyer

      No, I am not suggesting that for a couple reasons. (1) Ethics complaints can usually only be filed by the attorney’s client. Thus, only the school district may file the complaint. (2) These are not strict rules, so it would be difficult to prove violations of the rules (and most ethics boards would not act unless it is egregious). Finally, (3) Each case is different and I am not suggesting that every school district attorney acts this way. The point of the article is simply to point out what our ethics codes say and conduct that lawyers should strive for. Unfortunately, many school district counsel fall short of the goal.

      • Susan Moyer

        Thanks for the clarification! The sad reality is, school district attorneys do in fact participate in the kind of behavior you discussed. Unfortunately we experienced this first hand. Wish there was another system of checks and balances for this kind of behavior.

  7. Mary Ashland

    I used to be a member of COPAA. Very great group. I remember sitting at tables with people from my circuit after the presentations ended on Sunday going over current cases and their outcomes. Kudos to COPAA and thank you for posting this.

  8. Renee Webster-Hawkins

    I agree with the argument. I would also assert that, as an attorney representing a government agency, district counsel have a higher obligation to comport themselves with the civility of public servants, even while advocating for their clients.

    In our case, the district’s lawyer has been divisive and rude in IEP meetings and has shut down conversations we wanted/needed to have about the type of intervention my son needs for his profound dyslexia. In preparation for the due process hearing, the attorney included in her proposed evidence list the names of documents which would have suggested that he has a behavior problem — those documents do not exist, my son does not have a behavior problem, and I believe that listing them was intended to prejudice the judge. She also put my son on the witness list, which I am told is a frequent tactic to get parents to drop or settle the claim. She was caustic thru out most of the hearing. Until I posted something on my Facebook page about how shameful the school’s attorney’s behavior was. Then she seemed to tone down. I have filed a Public Records Act request to see how money the district has paid that law firm in the last three years.

    • schoolkidslawyer

      [HUGE APPLAUSE] I love that you are using the Public Records Act to discover the fees paid to school district counsel. After all, it is taxpayer money that is paying for those lawyers and taxpayers have a right to know where, how, and how much of that money is being spent. I think if people who pay taxes, especially those who don’t or no longer have school-aged children, found out how much is being paid to these attorneys, when it would be much cheaper to simply implement an IEP or provide requested services, there would be an uprising greater than the Boston Tea Party.

  9. The Imbalance between the Board and parent costs goes far beyond what is covered above. Many parents feel the system is “rigged”, but don’t exactly know how: First, parents typically pay much more for their attorneys – $250-$425/hour in NJ, than Districts ($145-175/hr in ours). Second, Board attorneys are paid with taxpayer money – essentially the money from the parents themselves. There is no personal cost to a school administrators to overuse the attorneys, it doesn’t come out of their pocket as it does with the usually emotionally and financially exchausted parents. Third, parents have to pay typically $200/hour for experts (other than those covered by an IEE, and even then may need to advance the testimony fees of IEE experts). Districts typically use salaried personnel which costs them nothing or almost nothing ($10/hr for a substitute if the expert is a teacher). Fourth, it takes about 1/2 the attorney hours as a defendant vs. plaintiff, so a D.P. Case costs a parent $50,000 in legal fees through hearing might result in $13,000 legal bill to the District. Fifth, and most importantly, Districts typically have liability insurance. The standard educators policy in NJ covers the Board attorneys fees for resolution meetings, mediation, settlement conferences, hearings, District court appeals, Federal appeals courts, administrative actions (e.g. OCR, state complaints, ADA) plus settlements, judgements, including any legal fees awarded to the parents. All with a $5,000 or $10,000 deductible. Meaning what might cost a parent $20,000, $50,000, $100,000 or more on appeal – with no hope of financial “gain”, since best case they can only recover what they spent, costs the District $5 or $10 grand. They know many parents can’t afford a DP case, and at $5K maximum costs and much better than 50/50 chance of the Board winning or settling for something far below a what’s appropriate (that’s another story), why should they care? Now given all of the above, how many of you think the fight put up by Districts is really about money?

    • schoolkidslawyer

      Not to mention that the fees paid to experts by parents are not recoverable as costs from the school district, pursuant to Arlington Central School Dist. Bd. Of Education v. Murphy, 548 U.S. 291, 126 S.Ct. 2455, 165 L. Ed. 2d 526 (2006).



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