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Can School Attorneys Legally Attend IEP Meetings? – Jeff Responds

01/28/10
by Jeff Martin

In November, I offered to research an issue and write a legal memorandum about whether an attorney for the school can legally attend an IEP team meeting.  

Thank you to all who posted comments on my article Can School Attorneys Legally Attend IEP Meetings?

I am finally out of finals and through the holidays and I wanted to respond to your comments.  Sorry for the delay.

  • “These attorneys actively misrepresent laws and safeguards.”

David, have you ever tried to tape an IEP Meeting?  I would think that this would cut down on the attorney “mistakes.”  See Tape-Recording IEP Meetings at http://www.wrightslaw.com/blog/?p=1654.

  • “Power of Attorney is no longer recognized by the school district as a legal document.”

I wonder if the attorneys were trying to split hairs between a general power of attorney and a specific power of attorney (SPOA) for education.  It could be that the school wants specific language concerning what rights the adult student is transferring to the parent.

The Virginia Department of Education has a good guide and a sample SPOA at
http://www.doe.virginia.gov/VDOE/Instruction/Sped/transfer_rights.pdf.

  • “I agree that attorneys attending IEP meetings should be subject to subpoena and cross examination in subsequent due process hearings.”

Glenn, James and Kelli, granting your wish would likely impact parents more than the school.  Can you imagine if the school could essentially “terminate” the parent’s attorney by subpoena?  Few parents have the hundreds of thousands of dollars that school districts do for multiple attorneys.  The cost to the parent of hiring another attorney to start from scratch would be huge.

  • “The attorney, though claiming special knowledge about the child, was not required to share what that knowledge was though he was permitted to participate in making decisions regarding the child’s IEP.”

Glenn, I agree that this does not make logical sense:  special knowledge about the child is not the same as special knowledge about special education law.  Yet, as the Department of Education notes, “Paragraph (c) of §300.344 provides that the determination of the knowledge or special expertise of any individual described in paragraph (a)(6) shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP team.”

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23 responses so far ↓

  • 1 Karen1 10/13/10 at 3:20 pm

    Our district hired its attorney to act as the sped director. She is currently working as both a litigator on sped for the district and as the sped director. She attends many IEP meetings, she says, as sped director. In light of your documents posted here, what are the implications of this tactic by the district? Could this possibly be ok given that she also litigates when the process goes in that direction?

  • 2 Parent 03/08/10 at 5:51 pm

    Thanks Jeff,

    I guess my question was confusing.

    I was recently old by an Education attorney that “parents are at a disadvantage when going against a school district and their attorney”.

    I understand that the tie always goes to the district.

    We are experiencing a school attorney who is documenting statements that contradict what is documented in an IEP and minutes.

    My hopes are that the BAR could/would discourage the attorney from using false statements and communications to stack the deck against a child who already has enough obstacles in their lives.

    I would not expect the bar to offer relief for my child’s education. I would expect the next child like mine, to not have the burden of an attorney who has no regard for “Honest communication” while trying to obtain the best results possible for their client.

  • 3 Jeff 03/06/10 at 9:31 pm

    Parent:

    In Virginia, ethics complaints are initially handled by the State Bar Association and not by the courts nor hearing officers concerned with FAPE. The Bar proceedings are confidential unless there is some type of public discipline. I don’t know of any proceedings that link an ethics complaint with a special education case.

    In addition to school attorneys, teachers, psychologists and other professionals have ethical duties. Pam Wright wrote about the ethical dilemma school psychologists face: http://www.wrightslaw.com/blog/?p=67

  • 4 Parent 03/05/10 at 8:42 pm

    I wish I had known about RULE 4.1 Truthfulness In Statements To Others.

    The School attorney’s willingness to participate in falsifying information has allowed the school to deny my child a FAPE, allowed the school to add ongoing legal expenses beyond what is reasonable, and has been a key factor in ongoing retaliation from school administrators.

    If truthfulness were a part of the process, it would have saved tax payers a LOT of legal fees and my child would not have been denied a FAPE for so long.

    Is anyone aware of past education cases in which a school attorney has been investigated for RULE 4.1 ?

  • 5 David1 02/27/10 at 8:29 am

    Jeff

    Thanks for your response.

    I am amazed at the efforts to falsify information in a way that is harmful to my child’s education. Our SC school district’s attorney addressed a FERPA request by first informing us that they cannot agree to the substantive issues as this may be damaging to their client.

    They site that this is not a FERPA issue and that the parents simply disagree with the district’s decisions.

    Their own documentations contradicts their own documentation.,

    ie IEP teamed changed placement to homebased during time comp ed was to be delivered. Reported to the OCR that child was with drawn from school, therefore comp ed was no longer required to be delivered.

  • 6 Jeff 02/26/10 at 7:05 pm

    David:

    Typically, each state’s Bar Association has a Code of Professional Conduct. (Your state’s Code is probably available online.) Within the Code are what we would consider ethical rules.

    For example, in Virginia:

    RULE 4.1 Truthfulness In Statements To Others
    In the course of representing a client a lawyer shall not knowingly:
    (a) make a false statement of fact or law; or
    (b) fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

    As you can imagine, school attorneys are bound by truthfulness too!

  • 7 David1 02/23/10 at 6:17 pm

    Are attorneys who represent school districts bound by a code of ethics similar to attorneys who practice in the other areas of law?

    Our school district’s documentation contradicts their own documentation in numerous areas in a way that is harmful to my son’s education and accomplishments.

  • 8 Nan 02/23/10 at 2:26 pm

    I am an attorney and attend IEP meetings as an advocate. During introductions I tell the assembled team I will not litigate this case but I have no hesitation in referring the case to a litigator if we cannot come up with a satisfactory IEP which meets the needs of this particular student. It is very motivating to a team, and empowering. Then I go on to say that we all have duties, like jurors, to find the educational plan that meets the needs of THIS student. That we are here as equals. I usually spend about two or three hours at least with each child beforehand, if I don’t know her or him already. I also teach phonics, and when a student’s parents learn that I am also a special ed advocate, they invariably ask me questions that end up with me going to their IEP, since I already know their child very well, because we spent time together.

  • 9 Jill 02/13/10 at 6:39 pm

    As a special education advocate, I have attended IEP meetings with school attorneys present. I actually don’t mind them there because their conversations are open for the team to hear and discuss. Attorneys that represent schools usually do not want to end up at a hearing so they may be more willing to work at creating an appropriate IEP. When there are others in the room that know and understand the law, they are less likely to say something wrong as they could be held accountable for their statements at a hearing. As an advocate, I make sure the school sends me a copy of the IEP. I read it and make comments back to the school’s attorney. If they are going to attend the meeting, then they should be accountable for making sure that the school is in compliance with the IDEA.

  • 10 Jeff 02/12/10 at 9:09 pm

    Cary:

    Who is charging $1600? For what, exactly?

  • 11 Cary 02/11/10 at 9:39 pm

    I loved the “organized crime comment.” You hit the nail on the head. My school board has now referred me to the attorney (they won’t tell me her name like it is some sort of secret) and has built what I feel like a chinese wall around my child’s education. They are attempting to charge $1,600.00 to review educational records. Now keep in mind my son is only six and has only been at school for 1-1/2 years.

  • 12 David1 02/04/10 at 12:25 pm

    Getting the district to provide the documents was no trouble. Getting them to “Correct” docuemntation is another story.

    It is this very effort that allowed us to realize that providing my son an educaton was not among their top priority.
    We had to make decisions that would allow my son to have access to some sort of educational instruction.

    it has been expensive and has not been an easy road.
    Our son is administratively enrolled in the public high school and is currently ranked #9 out of 424 seniors who recived a FAPE in the district. My son has never stepped on the property of the high school that he is administratively enrolled in.

    Successful graduation is the only justice that we expect from our system

    We are considering publishing some of our documentation to demonstrate how creative denial of FAPE has become .

  • 13 Colleen 02/03/10 at 10:57 pm

    Jeff,
    Thank you for the input. We had requested an IEE. The district spent what they referred to as “the allotment” on a consultation and after a long wait and many meetings and letters,, we finally got the IEE at public expense. It was a neuropsych eval – well done and very useful, only the district didn”t like the recommendations and still won’t agree to most of them.

    David,
    We just paid the school district over $150 ($.25 /copy) to get a copy of our child’s records. Furious over the cost and process that seems disturbingly similar to organized crime, but really one of the best investments we ever made.

  • 14 Advocate 02/03/10 at 3:23 pm

    At the time that law firms who represent school districts are held liable for slander, harrassment nad/or neglect, we will see the IDEA actually protect our kids educatioanl rights.

    Until that day comes, the IDEA is simply a congressional idea.

  • 15 David1 02/02/10 at 5:59 pm

    Jeff,

    Thanks for the info.

    In 2008, we requested that misleading documentation in my son’s records be corrected under the FERPA act.
    ie.
    “other offenses on your child’s discipline record is simply a CODE that indicates that he is on an IEP”. Note: IEP requires three letters and Other offenses requires. 13.
    The school’s attorney can tell you this with a straight face, as if it were a fact.

    The school’s attorney informed us that if we will let them know which information is incorrect, a note can be added to the record (that stays at the school district) indicating that parents disagree.

    There is no need to attempt to mediate with this mindset.

  • 16 Jeff 02/02/10 at 11:14 am

    My wife and I had our daughter thoroughly tested by the best experts available in our area. In some cases, the school will pay for an IEE. Do you have independent evaluations? Would you consider giving mediation a shot? (See http://www.wrightslaw.com/info/mediation.index.htm)

    My state adds the right to file a special education compliant with the state Department of Education. The state DOE then has to conduct a investigation and issue a report. Does your state offer any additional safeguards?

    The other thing I did was join my local Special Education Advisory Committee (SEAC). An organized group of interested parents can sometimes do what a bunch of lone parents cannot. Does a local SEAC meet in your district? Is there any other way you can find and meet with other parents that are just as frustrated? Any support groups?

  • 17 Jeff 02/02/10 at 11:07 am

    Rochelle, David and Colleen:

    Justice O’Connor in her Schaffer v. Weast opinion seems to “get it.” Justice O’Connor wrote: “School districts have a “natural advantage” in information and expertise . . . . [The parents] are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.”
    (http://www.wrightslaw.com/law/art/schaffer.impact.pwright.htm)

    Justice O’Connor pointed out a number of tools that parents can use to level the playing field including PWN (that D&C mention), an independent educational evaluation, and a due process hearing. IDEA 2004 allows for mediation and a resolution session before due process hearings. (See http://www.wrightslaw.com/idea/art/10.tips.steedman.htm#10)

    to be continued . . .

  • 18 Colleen 01/29/10 at 6:03 pm

    We tape record every IEP meeting. The school district has their attorney at every one of our meetings. Taping has helped us accurately recall what was said and not said, which helps us to write letters that are well thought out. In the end, it hasn’t changed anything. Why our district continues to spend thousands of dollars on the attorney and refuses to provide services for our son is beyond our comprehension.

  • 19 David1 01/29/10 at 11:17 am

    Our school district brought in a second attorney who was not on the invitation. We noted this on the sign in sheet at the end of the meeting.
    The IEP documents that the State mandated EOC exams are substituted and lists the (4 courses).
    In June 09, the school district made a unilateral change for the course taken in 2008-2009 . They added the EOC to 09-10 IEP.

    Minutes indicate that school attorney had tried to set up a meeting in jan09 to make this change. Email from their coordinator dated March 09 contradicts by informing us that student has competed all courses requiring the EOC exam.

    My son’s final grade was reduced for the 08-09 course despite the 08-09 IEP being written with TWO school district attorneys.
    They aren’t scared of a tape recorder. They document their deceptive practices for us.

  • 20 Wrightslaw 01/28/10 at 9:37 pm

    This post is continuing discussion on the article Can School Attorneys Legally Attend IEP Meetings? posted on 11/27/09. To get up to speed, read that article first at http://www.wrightslaw.com/blog/?p=1711. Then you’ll be able to follow the discussion thread. If not, don’t hesitate to ask a question.

  • 21 Jan 01/28/10 at 9:17 pm

    This is making no sense to me.
    I think we did not get the whole background as to the reason for the question.

  • 22 David1 01/28/10 at 8:23 pm

    “Have you ever tape recorded a meeting”?

    Yes, we have our meetings taped. I am of the same school of thought as you in thinking that this would make some sort of difference.

    I have put their documentation against their own documentation and asked that they correct misleading comments.

    Their attorney actually sent me a note indicating that “I can’t agree to the Substantive issues you have raised as this would indicate agreement to your stance on various issues and be detrimental to my clients’ position in this matter:”.

    They did send a letter recanting their mistake on POA but the letter is not available to decision makers at the table who rely on this type of information to make decisions on.

  • 23 Rochelle 01/28/10 at 2:06 pm

    We have a SPOA. The district is ignoring it knowing we can’t afford to fight them. They’ve already admitted this is about money. Their solution is to push the process back so they can ‘establish’ the stay put placement they aren’t supporting isn’t the proper placement even though the previous school district had committed to it for years; confirming to OCR and the USOE. All we are asking for is that stay put be honored. They refuse to take it to due process. We can’t bring in an attorney, so they have no excuse to bring in theirs to outlitigate and bankrupt us.