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By Reed Martin, J.D.
"I Have Grown So Tired Of Fighting With My School District That I Am Just
Going To Turn It Over To An Attorney"
We hear this often from parents who feel that hiring an attorney will
automatically cause the school district to move in the right direction.
Unfortunately, it might cause a delay of years in getting your child what
they truly need.
Hiring An Attorney Is Not A Casual Step
Someone sent us a post that suggested very casually contacting an attorney
as one of the earliest steps to consider.
As an attorney, I can say it is not casual at all. We urge parents to try to
solve problems through the many administrative remedies available to them.
Once you contact an attorney those administrative remedies might become
unavailable to you.
An immediate issue is whether you can find an attorney who knows anything at
all about this area of the law. There are many attorneys out there and many
would “like to take a crack” at a new area of law, which might mean a new
source of income to their law practice. So you need to ask around – your
Protection and Advocacy system, your Parent Training and Information System,
other parents in your disability group – to see if the attorney you are
thinking of contacting has a favorable reputation.
What Happens When You Contact An Attorney?
Assuming the best, when you contact an attorney they will probably want to
“sign you up” as opposed to taking some time to chat in general. That is
absolutely up to the attorney and you need to make clear in advance what the
situation is. Some attorneys’ offices will not let you talk to the attorney
until an initial fee agreement has been signed and money deposited in their
attorney trust account. Others will get on the phone and chat with you.
This attorney’s preference was to invite the potential client to the office
so I could determine if I wanted to work with them. We would have a
no-contract, no-fee discussion. While they were looking me over, I was
looking them over to decide if the whole case came down to their live
testimony on the witness stand – would I bet on them being convincing? I did
not want to invest the several hundred hours of preparing for and going
through a trial before having an idea whether I would believe my own client
on the witness stand.
But there are two other very important reasons why an attorney who you
contact might want to sign you up right away. They are both quite ethical
and mean that the attorney knows what they are doing.
First, any parent is operating on a “timeline.” How many days have you been
complaining that the physical therapist has not been hired and your child
has been not getting something specifically detailed on the IEP? How many
days can you knowingly let that slide before the school district could say
you have waived that claim?
Suppose you did not get the Extended School Year services last summer that
were on your IEP. Your child suffered as a result and is not performing this
Fall the way you had hoped. How long do you have to wait to complain about
that violation, before someone would argue that you have “waived” the right
to complain about that issue?
So an attorney who knows this area of the law might urge you to file
immediately to make sure you are not letting any timelines slip by. At least
the attorney whom you are consulting ought to inform you in writing about
the timelines in your state and whether you need to make a written demand on
the school district to preserve your right to complain about any of these
issues.
Different courts in different states have made decisions on these timeline
issues so we cannot inform you nationwide about one standard. You would have
to discuss it with the attorney you are consulting. And if that attorney did
not seem to understand the issue (and the vast majority of attorneys out
there have never done a special ed case before) you might need to consider
another attorney.
Another Complication
Another complication of “hiring an attorney” is that if the attorney feels
some timeline is perhaps approaching, they will want to preserve your rights
by putting something in writing and communicating to the school district. At
that point, when your school district learns in writing that you are working
with an attorney on that issue, it is very proper for the school district to
turn the entire matter over to their school board attorney. This means that,
even though you would still like to have informal conversations with your
school personnel to try and work things out, you will probably be directed
to put things in writing and send them solely to the school board attorney.
And if you write the principal, special education director, your friend on
the school board and so forth, they will probably be instructed not to open
the letter but rather to send it directly to the school board attorney.
This is not some sort of conspiracy. It is a quite acceptable practice by a
public entity that wants to make sure that if it is going to have a claim
made against it, that their attorney instantly knows everything that is
going on.
Use Your Administrative Remedies
So when you are talking about the problems you are having in school with
your child, and someone says “Hire an attorney,” take that comment with a
grain of salt. If you use the administrative remedies that are available to
you, in the way we describe them on this website, in our Manuals and at our
conferences, you will certainly be alerting your school about issues that
will preserve your right to argue your timelines but not destroy the ability
to keep talking to school personnel about solving your problem quickly and
simply.
Some parents like to boast that they have turned everything over to an
attorney but I would rather hear a parent tell how they used the
administrative remedies available and got their problems addressed in a
matter of weeks, rather than a matter of years.
This information is educational and not intended to be legal advice.
Reed Martin is an attorney with over 35 years experience in special
education law and recognized as one of the nation's leading experts.
He can be reached through
www.reedmartin.com
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“The only pure and consistent advocates for a child are his or her parents
or family members,” explains Betsy Primm, coordinator of Georgia Learning
Resource Services Metro-North branch. “That doesn’t mean that educators
don’t advocate every day for their students, but year in and year out, that
is a parent’s role.” |
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