When Do I Need a Special Education Attorney?

Most families whose children are evaluated for or who receive special education services never need the services of a special education attorney. However, there are some circumstances where consulting with an attorney who is experienced in representing families of children with disabilities can be really helpful. While hiring an attorney can be expensive, most attorneys will provide an initial consultation free of charge. There may also be non-profit organizations which can provide legal assistance. Some law schools also have legal clinics which provide some services at low or no cost to you.

When should you consider consulting an attorney?

• You learn that your Early Intervention (EI) agency, school, or school district has involved an attorney to handle issues related to your child.
• You or your EI agency or school district are thinking about filing a due process hearing request.
• You are about to go to mediation with the EI agency or school district.
• Your EI agency or school district has given you a settlement agreement to sign in exchange for services or money.
• You or your school believe that your child requires an out of district placement.
• A serious disciplinary matter has occurred, perhaps involving a Manifestation Determination or change in placement.
• You have requested an evaluation or reevaluation and your request has been refused.
• Your child's special education eligibility is about to end.
• Your child has repeatedly not met annual goals.
• Services in your child's Individualized Family Support Plan (IFSP) or Individualized Education Program (IEP) have not been delivered, despite your best efforts to get them started.

If you decide to consult with an attorney, make sure you find someone who fits the needs of your family. A good attorney will understand that hiring an attorney to represent your family is a big decision for you and will be open to answering questions about his or her experience.

Questions to Ask When Selecting an Attorney

• Does the attorney specialize in special education issues?
• How many Due Process Hearings does the attorney do each year?
• Has the attorney worked on cases in your district or with your EI agency? How would he or she characterize his or her relationship with district/agency administrators and attorneys?
• What experience does the attorney have in working with families with Autism Spectrum Disorder (ASD)? Does the attorney have experience working for children whose abilities or disabilities are like your child's?
• Is the attorney willing to provide you with references? Talk to families who have used the attorney to learn about the attorney's responsiveness, professionalism, knowledge, and effectiveness.
• How much does the attorney charge? Does he or she charge by the hour or by the job? If the attorney charges by the hour, don't forget the time that the attorney will spend reviewing your child's records, on the phone, and researching programs or services. Does the attorney charge more for time spent in hearings or court? What other costs will you be charged (copying, travel, postage, expert witness fees)?
• Will the attorney do all the work on the case or will a paralegal, secretary, expert, or other professional be involved? How much is charged for the services of these non-attorneys?
• What is the estimated amount of time the attorney thinks he or she and his or her staff will need to spend on your case?
• Is there a chance that you can recoup attorney's fees if you prevail in your case?
• Does the attorney think you have a legal case and how likely are you to get resolution by agreement? Does the attorney think a Due Process Hearing will be necessary? What are your chances of winning if you need to have a hearing?

If you choose to move forward with hiring an attorney, you will likely be asked to sign an agreement with the attorney and his or her law firm that says you have selected the attorney and the firm to be your legal representatives. The agreement will authorize the attorney and the firm to speak on your behalf to the EI agency, school, and/or district.

The law firm may also ask you to pay a retainer. A retainer is an advance payment, often a percentage of the amount of money the firm thinks you will need to pay for legal services. You will receive bills each month that will be deducted from your retainer. The bills should describe the work done by the attorney and other legal staff and will also include other expenses charged to you. If you have used up your retainer amount, you will need to pay the bill when it arrives. You should speak to the attorney about working out a payment plan, if needed. If the attorney does not spend the full retainer amount, it will be refunded to you.

An attorney can provide a valuable, independent, second opinion of your child's unique situation. Take advantage of the initial free consultation if it is offered to determine whether or not you need the services of an attorney at this point in time. A good attorney will tell you if your money is well-spent in moving forward with a case.

Recommended Link

• CAR Resource Directory (search for Advocacy)