“Do I Need an Attorney?”

DO I NEED AN ATTORNEY?
(and other commonly asked questions)

A GUIDE FOR PARENTS


I. What is the role of an attorney in a special education case?

An attorney takes on many roles in a special education case. First, he or she is your advocate throughout the process of obtaining the appropriate services for your child. As a result, it is important that the attorney has the expertise in the area of special education, so they can assess your case and provide guidance and counsel to your family as to how to proceed. Your attorney should be aware of the resources in your area available to your family to assist you with your case and meeting the needs of your child. Most importantly, your attorney should be initially focused on resolving your dispute with the public school. Finally, if resolution is not possible, your attorney is your legal representative at the formal due process hearing.

  • The special education system is driven by experts. If you have a dispute with the school district, you will likely need an expert to evaluate your child and/or the placement or program proposed.
  • Resolution of your concerns should be the focus of your attorney. The goal is to secure your objectives, not litigate.
  • Assessment of your child’s education should be ongoing. This is equally true concerning the assessment of your legal case.

II. How do I know if I need an attorney?

When to hire an attorney is a highly individualized decision. However, there are some universal experiences that cause parents to seek legal assistance:

  • A psychiatric hospitalization of your child
  • A suspension or expulsion of your child
  • The “14 to 1 experience”: The 14 to 1 experience occurs when the parent finds herself or himself sitting at his/her child’s IEP meeting, outnumbered 14 to 1 and made to feel like his/her opinions and feelings are not important
  • Future educational planning, such as transitions to junior high or high school, or transition from a 0-3 program to IDEA school-based services.
  • Failure within the current educational program
  • Conflict with the school personnel (or lack of trust)
  • Assistance with placement decisions
  • Moving out of the District
  • Refusal to begin a Case Study Evaluation
  • Refusal to provide an IEP or Section 504 Plan

It is important to seek the assistance of an attorney before you get to the point of suing the school district. Often lawyers can use their knowledge of the law to obtain your goals without the need for litigation, which has its own risks and costs, both financially and emotionally.

III. What is the process of hiring and using an attorney or law firm?

The first step of the process is the initial consultation. During your first meeting you should bring as much documentation regarding your child as possible. It is helpful to have the documents organized, either chronologically or by topic (i.e IEP’s, report cards, etc..)

During this meeting you should receive an initial impression as to the strengths and weaknesses of your case. It is not unusual for an attorney to suggest that you take your child for a private evaluation to assist in the process of identifying appropriate services for your child.

If you decide to retain an attorney, you should expect a more detailed file work up, which typically includes a request for school records from the District and an interview focusing on the history of your child.

Often, but not always, your attorney will request an IEP meeting to discuss resolution of the issues in your case with the school district. Usually the District’s attorney will also attend.

If your goals are not achieved after the IEP meeting or after negotiation with the District’s attorney, then your attorney will proceed more formally by requesting a due process hearing, or trial, to resolve the dispute with the school district.

IV. Is an attorney my only option?

No, in fact there are many cases in which the services of an educational advocate can accomplish your goals. However, educational advocates are not attorneys and there are no licensing requirements or standards mandated by the State. Therefore, the level of service provided by advocates varies greatly. One solution is to use an educational advocate who is associated with a law firm. Many educational law firms now have educational advocates. There are many advantages to using such advocates, such as (1) potential recovery of some of the advocate’s fees if the case goes to formal due process hearing, (2) instant association with a law firm should the case become more complex or require the services of an attorney, and (3) support and guidance from a law firm to ensure a high level of competence from your advocate.

Things to ask potential educational advocates:

  • What background, training and experience do they have in special education
  • What types of cases have they handled
  • What districts have they worked in
  • How many IEP meetings have they attended
  • When do they get an attorney involved

V. How much does it cost to hire an attorney?

Rates for attorneys who practice special education vary depending on experience. You can expect to pay a retainer fee, the unused portion of which should be refundable.

There is no uniform cost to resolving special education cases. There are many factors involved in determining the length of a case and the number of attorney hours needed.

However, those parents who are forced to go through a formal due process hearing to obtain appropriate educational services and who prevail at hearing have the right to sue the school district for their attorney fees under the Individuals with Disabilities Education Improvement Act.

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