Do I Absolutely, Positively Have To Have a Lawyer?

This is a question we often have to address with folks who call us. And the majority of the time, the answer to that question is “no,” a lawyer is not absolutely necessary. When parents are unhappy with their child’s program, and most particularly where the trust in the school district has eroded, calling a lawyer can be a knee jerk reaction. For many, that response seems warranted because they believe the school district is no longer listening to them, and that the presence of an attorney will make them sit up and take notice. Certainly, the presence of a lawyer changes the dynamic of discussions with a school district. IEP meetings become more formal, and generally the school district will have its lawyer present for those meetings as well.  

But having a lawyer may not always be the best option. Aside from the expense of hiring an attorney, there are other things to consider. One of those is looking at the issues parents are having. If, for example, the principal concern is that the parents feel overwhelmed, and are unable to articulate their concerns to the team either because the laws are too difficult to navigate, or because anxiety gets in the way, parents should consider using a lay advocate to assist. Lay advocates are common in Ohio and there are many who are skilled in assisting parents to understand what their rights are and how to advocate. Lay advocates often attend meetings and speak for parents who may be unable in that situation to adequately identify the specifics of their concerns. 

When choosing a lay advocate, be sure and inquire as to the person’s experience, and ask about their fees. Different advocates have different approaches so be sure the one you choose shares your style of communicating. If you want to be cooperative, and you go into a meeting with someone who has an aggressive or combative attitude, that person may not be the right one for you. Anyone who does lay advocacy should have insurance, and should look and act in a professional manner. Lay advocates are not lawyers, and under Ohio law, they are not permitted to advise you as to your legal rights. That is a rather fuzzy line in special education, but be aware that when you sign something, whether it is an IEP or a mediation agreement, that is a legal document and only an attorney can advise you as to how it will impact your – or your child’s – rights. Lay advocates should be attuned to when they themselves have reached a point where a lawyer is necessary to assist the parents.  

Even when parents are in dispute with the district, lay advocates can assist in the filing of a complaint to the Ohio Department of Education. Many lay advocates have extensive experience in filing complaints, and that is one way to resolve disputes in a reasonably efficient and inexpensive manner. But be cautious if you engage in mediation. At mediation, parents are asked to enter into legally binding settlement agreements and many include clauses that release legal rights. You should not do that without consulting a lawyer. Most school districts who draft mediation agreements will include a general release of liability, and parents may not understand what they are giving up, or what they are getting in return. Often when we see mediation agreements signed without an attorney, the problems are too late to fix.  

Some disputes, though, do require a lawyer, but only a lawyer can tell you that for sure. Generally when a parent is going to file a due process, they are better off to have an attorney. A lay advocate in Ohio is not permitted to appear at a due process and represent a parent at a hearing, though they can certainly attend and assist. Due process hearings are essentially bench trials, and most parents will significantly increase their chances of prevailing if they have an attorney. Additionally, parents face the possibility of having to pay the legal fees of the school district if the district prevails at the hearing and the claims brought in a due process request were for an improper purpose. Attorneys will advise you as to your potential liability for fees under those conditions.

Other considerations include what to do when the school has brought in their attorney. Many lay advocates are comfortable appearing at meetings where the district’s attorney is present. Others are not. Parents need to decide where their comfort level is, and whether they feel the need for their own counsel.  

In the end, parents are often left to determine whether they are better off spending their money on their child, or better off spending it on a lawyer. Generally speaking, the answer will usually be the former. For parents who cannot afford a lawyer, many of us in Ohio will, and have, represented parents without expectation of payment unless the parent prevails and fees can be recovered from the school district. Finally, some cases have components that go beyond the special education issues and may impact the child’s, or the parents’, civil rights. While parents do not need an attorney to file a complaint with the Office for Civil Rights, filing a complaint in federal court in a civil rights action will require a lawyer.  

Most lawyers in Ohio work cooperatively with lay advocates, parent mentors and others. Don’t hesitate to call an attorney if unsure about whether one is necessary. Any good parent attorney will provide you with an assessment of the matter that will reveal the best, and most cost effective, way to proceed.

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