10 Tips for Starting a Special Education Law Practice, Part VI

Published on May 14, 2009 by Jennifer Laviano

The stakes are incredibly high when one is representing the interests of children with special education needs.  While I think it is a good idea to weigh the “pros and cons” of entering any field of practice, or any profession for that matter, my personal belief is that this particular calling requires more consideration, research and training than one gets in law school.  This is especially true, since most law schools do not even offer a course on special education law.

If you are considering becoming a parents’ attorney under the IDEA, here are the most important things I would recommend you do:

Tip #6:  Study the law surrounding attorneys’ fees reimbursement

Like most civil rights statutes, the IDEA has a “fee shifting” provision, which provides that parents who prevail in a Due Process Hearing may be entitled to reimbursement of their reasonable attorneys’ fees.  The purpose behind this mechanism is the same as other fee-shifting provisions in other legislation:  people should not have to be wealthy in order to vindicate their civil rights and have access to the “system.”  In addition, allowing attorneys who represent parents of children with special needs to be paid for their hard work creates an incentive for quality legal counsel to enter this field of practice.

However, being legally entitled to reasonable attorneys fees does not mean recovering them from a school district is easy.

Whether you structure your fee arrangements with your clients in such a way as to wait to get paid by the school district if you win the case, or to be paid up front and fight for the parents to get reimbursed down the road, or a combination thereof, you absolutely must become familiar with the case law for attorneys’ fees reimbursement.

A good start would be to read the 2001 United States Supreme Court’s case in Buckhannon (http://www.law.cornell.edu/supct/html/99-1848.ZO.html).  While not a special education specific case, it has impacted prevailing party attorneys’ fees reimbursement throughout the country, and you should read it thoroughly. You can find a number of cases that relate to this topic within the Case law section of Wrightslaw: (http://www.wrightslaw.com/caselaw.htm).  And members of the Council of Parent Attorneys and Advocates can access an entire section devoted to decisions and briefs on this topic in the Members Area section at www.COPAA.org.

You also must read, thoroughly and specifically, the exact language of the IDEA that relates to attorneys’ fees reimbursement.

Attorneys fees are authorized under the Statute to be reimbursed by a Court, not a hearing officer, which has implications for how you might litigate your case.  In addition, the 2004 Reauthorization of the IDEA added language related to some VERY EXTREME circumstances under which a school district might recover prevailing party fees against a parent or their counsel, but be aware:  these circumstances are extraordinary and extremely similar to Rule 11 Sanctions standards under the FRCP.

You should also review the standards for Offers of Judgment, as this can impact attorneys’ fees reimbursement in a significant way, and is something you need to consider as part of settlement discussions.  Moreover, the very manner in which you keep your billing records might need to be altered when you consider that you might have to submit them to a federal judge for review and approval to justify your fees.

It is a complicated process, but if you are fortunate enough to run a successful special education law practice, then you can do well by doing some good for children and families who really need help.

2 Responses to 10 Tips for Starting a Special Education Law Practice, Part VI

  1. james
    August 31st, 2012 | 11:05 am

    Hey, thanks for the encouragement and suggestions. I have always wanted to do this and learned much from my 2 dyslexic sons’ journey. Kansas is one state that considers dyslexia a purely medical condition that does qualify for accomodations only upon a medical doctor’s diagnosis.
    The last due process litigation with our local school board and board of ed resulted in a fee assessment against the parents and a very good attorney for the parents was stunned by the result. chilling effect on parents who consider going beyond the administrative due process but somebody needs to have the courage to be the squeaky wheel.

  2. Jennifer Laviano
    August 31st, 2012 | 11:11 am

    Thanks for the comments, James. Some of the very best attorneys in the parent bar are those who became interested in special education because of their own children. We need more good people, especially in states where parents have little access to the system. And BTW, the word “dyslexia” is right there in the IDEA, so I don’t know how any State could escape it!