THE CRITICAL TIME TO ORGANIZE ADVOCATES IN SPECIAL EDUCATION IS NOW
By Donald Litman, Esq.
Lawyers are increasingly employing lay advocates to work in their offices, and are then supervising these advocates. Under the rules governing lawyers (RPC 5.3) they then are compelled to control these advocates, and at the same time charge for their services along with their own time in reviewing their work. The need for person specially trained in the areas of special education to accompany and advise a parent at an IEP meeting, or if necessary a Due Process Hearing, is increasing, and is allowed under the provisions of 34 CFR 300.512, which states any party to a hearing has the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities. This is not a right to be represented, which was the problem in the case of In re Arons, 756 A.2d 867 (Del. 2000), where the Delaware Supreme Court held that a non-attorney who claimed to provide the same services as a lawyer and held themselves out as the representative of parties in due process hearings was held under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., to have engaged in the unauthorized practice of law. More and more, state bar associations are mandating that lay advocates conform to working under the supervision of a lawyer, and prohibit independent advocates, because they are unregulated and lack integrity.
The reasoning bar associations believe that independent lay advocates are to be kept away, is because of the growth of bar association pro bono programs that provide free or low cost legal services through the bar association’s lawyer referral service. Asserting there is no shortage of lawyers, the protectionist approach of bar associations is to keep lay advocates as the legal assistant to the lawyer, with clients being billed for both the advocates’ time and the lawyers’ review of it. Unfortunately, parents of these children still have enormous legal fees, instead of only getting charged for the advocates’ time.
Since the decision by the US Supreme Court in the case of Winkelman v. Parma, Decided May 21, 2007, where the Court held that parents enjoy rights under the IDEA, that they are entitled to prosecute IDEA claims on their own behalf, as parents have an independent right to obtain a free and appropriate public education for their children, does the role of independent lay advocates now become in jeopardy. The school district warned the Court in Winkelman that these lay parents would flood the courts with frivolous claims, similar to what the lawyers state as to advocates, and that courts will become overburdened with improper filings. However, the Supreme Court noted that under the IDEA the prevailing party can get their legal fees, which could allow school districts to get their expenses in defending frivolous claims, and that even as non-lawyers the filing of a lawsuit can subject non-lawyers to the rules of court as to legal ethics.
If independent lay advocates do not self regulate their profession, then the various state and local bar associations will enact regulatory control over their conduct. The claim of lay advocates as a unethical group without any structure or rules of conduct opens the void for those outside the parameters of serving as an advocate to impose their control over this profession. The critical time to organize advocates in special education is now, and for self regulation t be adopted, otherwise if left to courts or lawyers the entire profession will be eliminated or reduced to serving a subservient role in the lawyer’s office, under the lawyer’s control, and having all charges to the clients being increased with additional lawyer time spent to review the advocate’s work.
So long as advocates provide advice and accompany their parents to the IEP or due process hearing, and not act as a representative, do they differentiate their role from that of a lawyer. A IEP meeting is an administrative meeting, which is non-adjudicatory, and predominantly based not on legal argument but on educational concerns. Lawyers are not educators, and advocates are not lawyers, and should the matter proceed to a due process hearing, an advocate can be useful to the lawyer as an extraordinary witness to the IEP process. Due process hearings are adjudicatory, and lawyers and advocates can work together at that stage of the process, in the event school districts fail to meet their obligations to provide a free appropriate public education. Advocates need to be independent or the credibility of their testimony is non-existent because they are an employee of the lawyer.
The time has come for special education advocates to create their own self regulatory body and develop their own rule of professional conduct with their own standards and disciplinary procedures, before it is too late. Soon courts and/or bar associations will implement rules and standards that will contribute to the obstacles parents face in obtaining help for children with learning differences. Ultimately, the fate of children in special education is to be decided by whether their parents can continue to fight, and the economics of this scenario may be decided without concern for these children unless independent advocates unite now.
Donald S. Litman, J.D., M.F.S. Attorney and Counsellor at Law Admitted in PA, NJ, DC, MD & VA Master of Forensic Sciences SUPER LAWYER - School & Education Law (Pa) Former Deputy Attorney General of PA
Phone: 215 361 7300
Donald Litman is a parent of 2 children on the autism spectrum. He has
been helping families with children with learning differences for over
twenty-five years. He founded Litman Law to serve the needs of
professionals, families and small businesses.
Mr. Litman has been a member of the Pennsylvania Bar
since 1989, the District of Columbia Bar since 1983, the Maryland Bar
since 1985, the Virginia State Bar since 1985, and the New Jersey Bar
since 2007. He earned his BA, Psychology and Biology, Temple University
in 1978, his JD from Antioch University in 1981, his Masters in
Forensic Sciences from Antioch University in 1981.
Mr. Litman served as
Head of the Litigation Department of American Patent Services from 1983
to 1989, as Deputy Attorney General of Pennsylvania in the Tort
Litigation Section from 1990 to 1992, trial counsel with Harleysville
Insurance Companies from 1992 to 1996, associated with Tallman,
Hudders, Sorentino from 2001 to 2004, and with Margolis Edelstein from
2004 to 2006. He was named general counsel to Autism, Ltd., and the National Center for Autism Resources and Education,
non-profit organizations serving individuals with exceptional needs, and
serves on the board of the North Penn Special
Education Council and the National Special Education Advocacy Institute. Mr. Litman works with various non-profit
organizations including National Sojourners promoting the cause of
Mr. Litman is admitted to practice before a number of US
Courts including, but not limited to, the Supreme Court of the United
States of America, U.S. Court of Appeals for the Third Circuit, U.S.
Court of Appeals for the Fourth Circuit, U.S. Tax Court, U.S. Court of
Military Appeals, U.S. Claims Court, U.S. Court of International Trade,
and the Temporary Emergency Court of Appeals for the U.S. He is a
member of the Pennsylvania Bar Association, Montgomery Bar Association,
Virginia Bar Association, District of Columbia Bar Association, and the
Defense Research Institute.