The Parents’ “How-To”: Picking a Special Ed Lawyer

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On March 8, 2010, I wrote an article about a con man representing himself as Michael E. Robinson, Sr. Mr. Robinson represented himself to be, at times, a special education lay advocate, while at other times, claimed he was a special education attorney. Mr. Robinson also claims to have been a lobbyist, medical doctor, retired NASCAR driver, and an epileptic who has been given a wolf as a service animal.

Mr. Robinson is still actively engaging in his cons, according to the last information that KPS4Parents received from its sources. So parents need to continue to beware. He hasn’t been caught and prosecuted, yet, though he has been reported to the authorities. I thought about this article recently after reading an article in the Washington Post about a guy named Howard Deiner in Arlington, Virginia.

Howard Deiner had decided to enter special education law, representing children with disabilities and their families in their special education matters, including due process hearings and federal appeals. The problem was that Deiner frequently failed to pay his bar association dues, causing his license to practice law to lapse. It has been lapsed since 2005, yet Deiner continued to practice law, telling authorities that he wasn’t required to have a license to represent children in special education matters.

While it’s true that lay advocates are not required to be licensed because they aren’t actually practicing law, Deiner never claimed to his clients that he was acting in the capacity of a lay advocate. He continued to represent himself to his clients as an attorney and continued to practice law. He also apparently delivered poorly on his obligations and failed to give clients money they were owed.

Likely, the money owed to his clients was reimbursements from local education agencies achieved through settlement or due process. It’s common for a warrant to be issued payable to the student’s attorney for everything so that there’s only one check to cut. The student’s attorney is supposed to have a trust account into which those funds would be placed. From there, the funds are disbursed according to what is owed to whom.

Since part of the money is reimbursement to the parent for educationally necessary costs that they bore to address something that the district neglected, such as an independent assessment or tutoring services, a check from the attorney’s trust account in the amount of the reimbursement total should be made payable to the parent.? However, Deiner never set up a trust account and parents complained of not getting money from him that they were due.

This is the kind of stuff that just makes me sick. As Tom Jackman stated in his Washington Post article, “Parents of children with special needs – often already stretched thin financially and emotionally – sometimes must take on the additional struggle of fighting with school districts to get their child a proper education.”

It is an acknowledged reality that the system is broken enough to warrant fairly frequent litigation. That speaks to just how sad things are in special education right now.

I’m not going to say that there are no parents taking their cases to litigation over simple misunderstandings and a failure to communicate. Of course there are. This is a far from perfect world. But, being someone who doesn’t go along with that sort of thing, those are not the parents that I’m helping.

The parents I’m helping are at their wits end with their school districts over things that are mostly the outcomes of inadequate training of district personnel, ignorance, apathy, and a general failure on the part of district personnel to appreciate the magnitude of the responsibilities they have assumed. These parents often have significant cause to take their school districts to due process, though we try to help solve problems before that extreme has to be taken.

When parents who really don’t understand what they’re doing come to us, we help them understand. That’s our lay advocacy service model – we use each case as a hands-on teaching experience for the parents, using real-life developments to educate them on how the special education process works. As time goes on, they become more informed participants. They see what actions achieve the results they’re seeking and learn what to avoid.

But, that’s not how lawyers tend to work. Lawyers tend to take a “let me handle it” approach and explain things in the simplest terms to their clients. A lawyer is brought in when it’s time to delegate a far more complex situation to a professional than what a parent, even with lay advocacy support, can accomplish. At that point, litigation is inevitable.

When this moment arises, parents need to be represented by a competent professional who has the resources to stay on top of things in as close to real time as possible. This usually requires the support of at least a law clerk. Ideally, it’s a firm that has the human resources to dedicate a team to collaborate on a case and have the team members assume various aspects of the work to be done.

Realistically, however, it may be a solo practitioner working from home with part-time law clerk support. The reality is that special ed law isn’t particularly lucrative (at least it isn’t when you actually disburse your clients’ reimbursements to them) and most people who go into the field do it as a labor of love. There aren’t that many sizable firms representing students and their families in special ed law. The big firms are usually representing the school districts, which have infinitely deeper pockets than parents.

In any event, because lawyers basically “take over” cases from the parents, Howard Deiner was in a position to take advantage of unsuspecting parents. Apparently he had learned of the niche of special education law from a personal experiencing involving one of his sons. Presumably he knew enough about the special education regulations to impress parents enough to hire him.

The problem probably wasn’t his knowledge of special education law. That was what he probably dazzled his prey with. The problem was that he wasn’t particularly committed to following through on his responsibilities and took money that he hadn’t earned or kept money that wasn’t his to keep. He was profiting from conducting himself in an unethical manner. He’s a con man.

All of us who are legitimately working to make special education actually work, whether within the public education system or outside of it, are surrounded by incompetents, buffoons, and opportunists. That’s just life. Everyone is surrounded by people like this in their professions. Why should special education be any different?

The thing is that parents should check out the attorneys they are considering hiring before actually giving any of them money. Verify that their licenses are active by contacting your state’s bar association. Some states have online license verification on their websites. You just type in the attorney’s name and it will tell you the status of that person’s license to practice law.

Another possible resource is the Council of Parent Attorneys and Advocates (“COPAA”). While being listed in the COPAA member directory is no promise of how good an attorney is, if an attorney claiming to practice special education law isn’t a member of COPAA, parents should take the time to ask the attorney why he/she isn’t a member.

If the attorney doesn’t know what COPAA is, parents should be concerned. It’s one thing to have a philosophical objection to belonging to a particular organization, but if you don’t belong to the only professional association for your field of practice because you don’t know about it, something funny is going on.

There is absolutely nothing wrong with parents asking to see the decisions from any special education cases that the attorney worked that went to hearing or trial. In some states, the decisions and orders from the special education cases are published online with the student’s identifying information redacted or substituted with “[Student]”. All you have to do is a keyword search of the attorney’s name and you should get all of the cases that the attorney you’re researching has taken to hearing.

Reading the decisions and orders from due process cases that a particular attorney has taken to hearing can give you an idea of how well that attorney generally fares in hearing. It will also give you an idea of the judges’ attitudes towards the attorney and how much credibility he/she had with them. If the decisions are not favorable to the student, then either the case wasn’t well presented by the attorney you’re researching, the claims he/she was asserting had no merit, or you’re in a very pro-district state that rarely finds for students and parents. If you suspect the latter is the case, you need to find out if any of the lost cases were appealed and, if so, what the outcomes were of those cases.

Sometimes, things are so bad at the due process level in a particular state that the only thing student/parent attorneys can do is ride out the dysfunctional process for no reason other than to exhaust all administrative remedies before filing a federal lawsuit. You cannot civilly sue a school district unless you have exhausted all administrative remedies, which includes due process fair hearing under the IDEA. Due process hearings are administrative hearings, making them an administrative remedy that must be exhausted before pursuing any civil claims.

So, before you judge an attorney with a not-so-great track record in due process too harshly, make sure that what you’re seeing isn’t the outcome of politics. Special education hearing procedures vary from state-to-state with some requiring a hearing to be conducted by the very school district being accused of wrong-doing before proceeding to a state-level hearing. Many state-level hearings are tried by state agencies, which means the government is expected to determine whether the government did anything wrong. The opportunities for corruption are endless.

But, be cautious because these very circumstances make it very easy for an incompetent attorney to blame his/her failures on the system rather than anything that he/she may have done wrong. A good attorney is going to dot all the i’s and cross all the t’s in spite of the dysfunctional system because the record needs to be plainly made proceeding forth on appeal.

A sloppy attorney will use the dysfunctional system as a cover for cutting corners and leaving things undone, giving him-/herself nothing valuable to work with moving forward on appeal. It is unlikely that a sloppy attorney would bother to appeal a due process loss. Otherwise, all of his/her errors and omissions would be exposed.

If an attorney blames the faulty administrative hearing system for his/her due process failures but then doesn’t have a plausible explanation for why the cases weren’t appealed, you may be dealing with someone who milks money out of parents for due process cases that either should have never gone to hearing in the first place or were poorly presented. The only reason to not go forward with an appeal is because the family just can’t take it emotionally anymore, neither the parents or the attorney has the financial resources to finance continued litigation, and/or the case would probably lose on appeal.

You never really know when you’re looking at decisions from legal proceedings just how accurately they reflect all that went on. You have to go with your gut a little because you’re going to be dealing with conflicting opinions as much as consistent absolutes.

If you find yourself having to make a leap of faith on an attorney for your child because you’re in a desperate situation, at least confirm that the person’s license is active and he/she isn’t currently under investigation for any alleged wrong-doing. You can do the other legwork while the attorney gets started on the case to verify his/her qualifications and effectiveness, as well as research any other options you may have for attorneys licensed in your state who practice special ed law on behalf of students and parents.

If, at some point, you determine that you’d rather work with a different attorney, it’s your right to change lawyers. Don’t think you’re stuck with anyone but do try to make any changes as early on in the process as possible to minimize disruption and prevent the change from making things drag on longer. You don’t want to be responsible for any delays that may make you look unfavorable to a judge. The first day of hearing is not the time to ask for a continuance while you seek new counsel.

There is also nothing wrong with asking for references. Just be aware that the people given as references are the ones that the attorney knows are going to cast him/her in a favorable light. Take what they say with a grain of salt. If at all possible, speak to parents whose cases went to hearing and ask how the attorney performed during the proceedings.

Ask how well the attorney performed in mediation, bearing in mind that what was actually discussed in mediation cannot be disclosed to you. You’re only wanting to know how effective and professional the attorney was, not the terms of settlement.

Did the case settle? If not, was the education agency being pigheaded and unreasonable altogether or did it make any kind of reasonable offer at all? Did it almost settle but fall apart in the end or were the negotiations frustrating and unproductive all the way through? How long did the mediation last? At what point did it seem like settlment wasn’t going to happen?

Regardless of whether the case settled or not, was the attorney gracious and diplomatic? Did he/she resort to name-calling and/or tantrumming? Did the attorney do anything that made the parents uncomfortable? Did the attorney do anything that markedly contradicted what the parents thought was prudent? Did the attorney ask the parents for their opinion during the mediation process? Did the attorney explain what was happening to the parents’ satisfaction?

These are all steps you can take as a parent to identify an attorney who can help you if you’ve reached that terrible point where due process has become necessary. A good attorney will explain what is going on well enough for you to legitimately follow along; meet all of his/her filing deadlines; articulate the facts of the case and the laws that apply to them in easy-to-understand language that makes the record clear; conduct him-/herself in a dignified manner at all times; and pursue strategies that are reasonably calculated to achieve their intended outcomes.

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