Representing children with special needs throughout california and nevada

Fighting for Your Child – When It’s Time to Call a Lawyer

How to find and hire a special education attorney to help your child

Jean Murrell Adams, Esq.

 Part I of ADAMS ESQ’s  Fighting for Your Child series focused on how and where every parent should start when advocating for a special needs child.  Part II of Fighting  addressed the role of non-attorney advocates.  This final installment explains how to hire (and fire) a special education attorney.  When should you call an attorney for help? Where can you find special education attorneys? How can you afford to hire an attorney?  Can you fire your attorney?

Special Education Attorneys

I. How do I know when to call a lawyer?

Contacting an attorney can be scary. You don’t know where to start, how much they will charge, or whether you even need one. Hiring an attorney should be the option of last resort. But, if you have requested help from your school district or charter school and have received conflicting information (or worse, no information at all) and your child is not making progress, it’s time to think about taking it to the “lawyer level”.
If you’re not sure whether you should contact an attorney, call an advocacy agency like those listed in Part ll of our series. They will typically listen to your concerns and let you know if it is a matter that a lawyer should handle. Below are some examples of events that might trigger a call to an attorney.

Consider seeking legal advice if:

The school district ignores your written request for assessment: Once you ask that your child be tested for special education, the school district must begin testing (with your permission) or send you a written notice detailing the reasons for its refusal to start this process. Although not required to do so, always submit your request for evaluations in writing and keep proof of submission for your records. Some schools will refer you to Response to Intervention (RTI) or a Student Study Team (SST). This is fine, however, neither process takes the place of the school district’s responsibility to timely test your child to determine if she needs special education and related services. Depending on the severity of your child’s needs, you may need to hire an attorney to enforce this right. If you have not received a response from the school district after several written requests, you may also consider filing a Compliance Complaint with your state’s Department of Education.1

The school district continues to refuse to provide the accommodations and services that are included in your child’s IEP. Many parents work hard and collaborate with their school districts only to find that no one is following their child’s IEP. This often happens when students transition from middle school to high school or change placement mid-semester. Some teachers believe they are simply too busy to comply with various IEP requirements. Other teachers say that they treat all of their students as if they have an IEP, so they don’t need to provide special accommodations.

You are getting multiple calls to come and pick up your child–for any reason. Even if your child does not currently have an IEP, if the school is calling you to pick him up on a regular basis, they should be on notice that he may require special education services. Missing time from school is generally not the appropriate solution.

The school district referred you to SARB for your child’s truancy. If your child is missing school due to suspensions or mental or physical illness and the school district responds by referring you to a truancy board, contact an attorney for advice. Many special education attorneys will not actually attend a truancy hearing; however, they may be able to determine if the absence is disability-related and therefore your child should not be labeled as “truant”.

If your child is severely injured at school. Depending on the severity of the injury, most special education lawyers will not handle personal injury cases. There are very strict rules and short timelines when filing these types of complaints against school districts. However, a special education attorney or agency may be able to refer you to personal injury law firms who handle these types of cases.

Your child’s behavior is extreme and the school refuses to provide a behavior plan or appropriate supports. This is typically an urgent situation—particularly if your child is endangering herself or others. If the school district continuously ignores, suspends or even expels your child for her disability-related behavior, you may want to seek legal counsel immediately. There is a special expedited hearing that attorneys can request in order to address expulsions related to certain severe behaviors.

Your child does not meet IEP goals from year-to-year or goals are a “cut and paste” from prior year. It’s hard for parents to know what to request in order to make up for lost education, improper placement or skimpy services. If your child is continuing to perform poorly in school, even after years of special education, you may want to check with an attorney for guidance.

For example, the California Department of Education (CDE) has a process for determining if your school district is in compliance with special education laws. Upon filing of a complaint, CDE will typically launch an investigation and issue a ruling within 60 days. This is usually helpful if there is only one concern, for example failure to timely assess or failure to provide all of the student’s speech services.Your child does not meet IEP goals from year-to-year or goals are a “cut and paste” from prior year. It’s hard for parents to know what to request in order to make up for lost education, improper placement or skimpy services. If your child is continuing to perform poorly in school, even after years of special education, you may want to check with an attorney for guidance.

​• If you have filed a due process complaint or the school district has filed one against you, contact an attorney immediately. Parents should not attempt to handle these cases on their own, and recent court decisions prohibit non-attorney advocates from representing parents and students at hearing. Consider contacting the Office of Administrative Hearings (OAH) or the agency in your area that oversees due process proceedings. Request an extension of case deadlines so that you can locate an attorney to help you.

Someone at the school district asks you to waive your (child’s) rights. Many school districts and charter schools are now using their own informal dispute resolution process. This can save time and benefit all parties. However, we have noticed a recent trend where school districts are fooling parents into signing binding agreements that offer little for the child in exchange for a waiver of all rights. Contact an attorney before you engage in informal mediation so that you can get a “reality check” on what you can and should expect from the process.

II. How do I know if my lawyer is qualified?

◦ Look her up on your State Bar website (for example, www.calbar.ca.gov in California) to find out where she went to law school, how long she has been practicing law and whether there are any marks on her record.

◦ Internet: By now, every law firm should have a website or at least a Facebook page. Many are also on LinkedIn. Look them up to make sure that they have experience representing children with disabilities similar to those of your child. Also check to see if they have written articles or participate in teaching seminars and parent workshops. This will be a good indication that they keep up with the current changes in the law.

You can look up past special education decisions in your local Department of Education website to find out which lawyers were involved and the types of issues that they handled. Parent advocacy sites such as COPAA and Wrightslaw offer a vetted list of attorneys by state. Avoid relying on Yelp reviews as parents generally do not publicly comment on these types of cases. Instead, focus on testimonials on websites as these are typically anonymous.

◦ Ask your potential lawyer lots of questions. Have you ever had a case involving this school district? Have you ever represented a child with disabilities such as mine? How long have you been handling special education cases?

III. How much do I have to pay for a special education lawyer?

◦ Start with “free”. Special education law mandates that your school district or state education agency tell you about free or low-cost legal and other relevant services available in your area. OAH maintains a list of free and low-cost advocates and attorneys. Some attorneys charge a flat rate or on a sliding scale. Request a free consultation. Most attorneys will provide an initial consultation at no charge. Agencies like DREDF, CASE, Disability Rights and Nevada PEP get very busy and may have long waiting lists. It’s generally better to seek the aid of an attorney if your child’s needs are urgent. Usually the attorney will request certain documents for review in order to have an informed consult with you. Provide them promptly and show up for your meeting on time. Remember that the attorney is spending a great deal of her time reviewing and analyzing your documents before meeting with you. This time is usually included in the complimentary consultation.

◦ Every good attorney must have a retainer agreement that spells out the terms of the legal representation. Those terms include payment, the scope of representation and under what conditions you may terminate their services. Read these terms carefully and ask questions if you do not fully understand them.

◦ Finding and hiring the right lawyer to represent you and your child should never be done hastily. You have a number of factors to consider, including experience, cost, location and types of services offered. For example, ADAMS ESQ represents parents throughout California and Nevada and generally charges a retainer of $1 (yes that’s One Dollar) to qualifying clients. However, our attorneys generally do not attend IEP meetings, opting instead to send non-attorney advocates in limited circumstances. Other special education lawyers attend IEP meetings but will not take cases to court. If possible, interview 2 or 3 different law firms before making a final decision so that you can find the right fit for your needs.

IV. Can I fire my lawyer?

• Yes. You have the option of firing your attorney for any reason. However, always think twice before doing so as there may be financial repercussions, it may negatively impact your case and it may be difficult to retain new counsel if needed.

• Read your retainer agreement so that you understand the effect of your decision to terminate your attorney/client relationship. Many attorneys will place a lien on the case for their earned but unpaid legal fees. If you have paid a retainer in advance, it will likely be non-refundable in whole or part, depending upon how much time and expense that the law firm has spent on your case.

• Some attorneys will not represent clients who have fired their prior law firm—even if they were justified in doing so. Remember that law firms are businesses too. Lawyers must establish certain policies to insure against loss so that they can continue to represent their special needs community.

• It’s a good idea to avoid signaling to the school district or charter school that there is discord between you and your counsel. Districts can take advantage of this conflict to offer settlement terms that appear to be acceptable but can be less than beneficial in the long run.

• If you have to fire your lawyer try to do so as soon as possible, preferably before you both have invested a lot of time in preparing the case. Some parents delay firing their attorney until the end of the case. They may become anxious due to an upcoming hearing or settlement meeting. Avoid firing your attorney at this late stage as you can lose case momentum and will likely have to restart the process. This can cost valuable time including a loss of education and services for your child.

Contact us at connect@adamsesq.com  if you have more questions on how to obtain legal help for your child with special education needs.

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