Finding an Attorney or Advocate
Finding an Attorney or Advocate—and Understanding the Difference
The first step is to understand the difference between an advocate and an attorney and to be clear about your needs. As discussed throughout this chapter, whether you are choosing an advocate or an attorney, it will be important that you select an individual with training and understanding of special education and the law.
The Advocate
An advocate is a layperson, meaning they do not have a law degree and cannot give you legal advice. Basically, anyone can decide they are a special education advocate—which certainly has its pros and cons. Advocates are not required to have any type of certification or educational background in order to provide or even bill for their services. However, many advocates have extensive training and experience in the area of special education and can become an essential part of your child’s educational journey.
The Attorney
An attorney is an individual with a law degree who has passed the bar exam and is licensed to practice and advise clients on the law. Attorneys are required to take yearly continuing education classes to keep up their legal skills. However, just because someone is an attorney does not mean they understand special education laws or educational due process hearings. An experienced education attorney is one who has worked in this area, understands education law, and is able to effectively represent parents in due process hearings and provide them effective legal guidance. Conversations and material you share with your attorney are privileged, which means they can’t be shared and are not discoverable by your school district. If you must pursue a due process hearing against a school district, your fees may be reimbursed to you.
Frequently Asked Questions About Advocates.
How do I know when I need an advocate versus an attorney?
A lay advocate can help provide you guidance. Often, they will attend IEP meetings with parents to help them “advocate” for their child’s needs. In some states they can even represent parents in a due process hearing. If you are looking for someone to help educate you on resources, provide basics as to your state’s code, and help you assert yourself at an IEP meeting, then an advocate is a terrific ally.
Private Advocates
Many parents find that having an advocate travel down the road of special education with them is a godsend. I agree and believe you can nip many problems in the bud by engaging an advocate early. However, this must be done with care as well. I have seen too many parents end up spending thousands of dollars in situations where an advocate was out of their comfort zone. This is often apparent when a parent and the advocate have been to countless IEP meetings or mediations. Depending on how much the advocate is charging, this can end up costing the parents far more than an attorney would have billed and being far less effective. This is why your advocate’s training is critical. You want someone who is capable and trained and who knows when the situation needs an attorney, not just someone by your side.
If I want to start with a lay advocate, how do I find one?
There are many advocates out there, working privately or for organizations. Many of these organizations have directories of advocates and attorneys in your area as well. Just start talking to other parents in your area.
Council of Parent Attorneys and Advocates
COPAA is a nonprofit organization whose stated mission is to protect and enforce the legal and civil rights of students with disabilities and their families. Its primary goal is to secure high quality educational services and to promote excellence in advocacy. It offers resources to parents, advocates, and attorneys, as well as a directory of resources, including the names of advocates.
Parent Training and Information Centers (PTI)
Every state is required to have Parent Training and Information centers. Many of these centers have advocates on staff who help parents understand the system. I have found they are excellent for parents whose children are just entering the system and who need to start gaining an understanding of what is available. However, often PTI organizations want to remain neutral and provide guidance but not aggressive advocacy—this can certainly vary state to state, but it is something to be aware of. A call to your state DOE can help you get information about your local PTI.
What are the questions I should ask when finding a lay advocate?
Are they experienced in your area of the country? Remember services and standards vary widely based on location; while the federal laws are the same, IEPs may look quite different, and your state may provide additional protections.
How long have they been an advocate? Do not accept that they have been an advocate for fifteen years because they also have a child with challenges. How long have they been an advocate for other families, and what has that entailed?
What are the fees? Private advocates charge on a very wide scale depending on location. It is very important you understand what you are getting into in terms of fees prior to signing a contract with the advocate. Advocates from PTI centers or from disability clinics will come at no cost.
What type of training have they had? It is essential that you ask your advocate whether they have had training through a national organization that offers training and advocacy. Many national organizations offer trainings that range from two days to one week in length to cover the law, negotiation strategies, and advocating for families; these trainings are truly essential for an advocate to be effective, knowledgeable, and experienced enough to effectively help you with your own child.
Attorneys.
What if I am in a state where I can’t find an education attorney?
There are a few states where it is really hard to find experienced education attorneys. If that is the case, depending on the magnitude of the dispute, you may need to contact attorneys in other states who are licensed in your jurisdiction or who can work with an attorney licensed in your state to help navigate your representation. In critical cases, such as one where a child needs an urgent residential placement and your school is not taking steps to help your child, it is worth spending time searching for an attorney who can help you. Highly trained and experienced advocates are terrific and may also be able to help a noneducation attorney prepare your case. Whether a non-attorney advocate can represent you at a due process hearings is determined by state law. 34 CFR §300.512(a)(1).
If you need help and there is an active dispute that may need a due process - find an attorney. A due process hearing is a legal process. You need legal advice and guidance.
Non-attorney advocates may miss objections, legal arguments, and other legal maneuvers that are critical to a successful case. Some advocates argue that they have been through their own due process hearing and can navigate parents through theirs without the cost of an attorney. However, think of it in terms of family law—just because your friend is divorced doesn’t mean they can represent you in your divorce against an attorney in a court system.
If you win a due process hearing, the decision may be appealed to federal court. School districts often use one or more lawyers who know the system well, and not having an attorney places parents at a distinct disadvantage if the district appeals. Many parents are not able to successfully defend an appeal without counsel.
You will not be able to recoup your advocacy fees. However, you can recoup your attorney’s fees if you are the prevailing party in an educational due process—this means that the school district may end up paying you back what you had to pay if you hired an attorney.
How do I find an experienced attorney?
The same way you find an advocate—check with disability organizations, do internet research, and talk to other parents.
What are the questions I should ask when finding an attorney?
How long have you represented parents in special education disputes?
What are the fees? Do they offer payment plans or contingency agreements? Alternatively, is it strictly an hourly rate with a retainer agreement?
What type of training have they had? It is essential that you ask your attorney whether they have had training through a national organization that offers training for attorneys in the area of special education law.
What percentage of their practice is made up of special education due process? Someone who does a due process hearing once in a while may be fine. If an attorney has never done one before, it may be helpful to have an experienced advocate assisting them on understanding the special education laws. However, if you have access to full-time education practitioners, they can also give you a lot more guidance on your case.
How often do they proceed to hearing? This can help give you a feel of your state’s and school district’s methods of dealing with parents. In some states the school district attorneys are proactive and focus early on trying to get resolutions. In others, schools often take cases to hearing.
Can you do a consultation with us and then recommend steps? Having someone with experience review your case can be a huge help when trying to decide how to move forward. A good attorney can help you make this determination.
Understanding Special Education Attorney Fee Agreements
IDEA allows parents to seek reimbursement of their attorney’s fees. This often changes how attorneys who work in this field create fee agreements for families who are pursuing educational due process hearings.
IDEA provides under 20 USC 1415(i)(3)(B); 45 CFR § 300.517(i), “In any action or proceeding brought under the IDEA,the Court may, in its discretion, award reasonable attorney’s fees as part of the costs: (I) To the prevailing party who is the parent the child with a disability” (emphasis added).
Types of Agreements
Hourly Fee Agreement
An hourly fee agreement is the most common type of attorney fee arrangement, and you often see this in family law or general civil matters. It is also utilized by many education attorneys. The attorney will charge a per hour rate, and time is normally tracked in six-minute increments. Depending on where you are in the United States, the hourly rate can be vastly different. Often education attorneys range from $125 per hour to over $400 an hour depending on area and expertise. These agreements will also cover expenses and paralegal fees. Some attorneys will charge a different amount for an educational due process hearing than they will for “prehearing” work. Attorneys who use hourly rate agreements typically will also request a retainer amount. A retainer is a sum of money to put toward the balance and is placed in a trust account until it is used.
Contingency Agreement
This agreement makes the payment of attorney’s fees contingent on the success of the attorney at securing an award or outcome. In education this would mean that the attorney would request payment of your fees as a condition of settlement or would seek the attorney’s fees after you were the prevailing party in an educational due process hearing. In most situations you are still responsible for expenses, expert fees, and other costs of the litigation.
Flat Fees
A flat fee is utilized by lawyers who will “cap” the total cost of a due process hearing or other educational representation. Often these are used in a mixed fee agreement where there is a cap but the lawyer has the ability to go after their full fees from the school district if the parent is the prevailing party in the education action.
Mixed Hourly Fee/Contingency Agreement
This type of agreement often has parents either paying up to a flat fee or following some type of low payment plan until settlement or payment of attorney’s fees is secured.