Sunday, June 29, 2014

What is the differnce between an education advocate and an attorney?

What is a non-lawyer education advocate (also sometimes called a "parent advocate" or "educational consultant")?  When do you need an attorney?  Generally speaking, a non-lawyer advocate can help you write an IEP, and can help you until a dispute arises.  While an education advocate can help with some disputes, they cannot give legal advice, and if a parent accepts legal advice from an advocate that is not correct, it will be difficult for any attorney to fix.  In practice, an advocate and attorney play different roles but both can work together as part of your team.  In fact, a good advocate knows when he or she has done all they can to help a parent, and then they will refer you to an attorney.  Likewise, if what you need is an initial IEP, or a better IEP, an education attorney will refer you to an advocate.  While an education attorney can help you with an IEP, an advocate is probably less costly. In the end, if you end up in Due Process, you cannot recover for fees you spent on an advocate, which is why an advocate ought to know when to refer a parent to an advocate.  Parents should also be cautious when advocates tell them they "have a case" or that they "don't have a case."  That crosses the line of giving legal advice.  An advocate should not be advising a parent about whether they have a case or not; instead, a competent advocate will refer the parent to a lawyer to evaluate the facts in light of the law, and that lawyer's own experience.

A non-laywer advocate’s focus is on education.  An advocate should, for example, help the parent identify the child’s unique needs, explain to a parent how progress is monitored, helps formulate "SMART" goals, help select services needs, supports needed, methodology, and identify areas of needs that have not been addressed in the IEP but that need to be addresed.  To best accomplish this, effective advocates understand schools; they may have been teachers themselves.  Some may have been parents of a child with special needs.  

An education attorney has a duty to keep current on the laws, which include federal and state statutes, rules and regulations, and ever-changing case law (court decisions, both for their own state, and their Circuit, and the Supreme Court).

When looking for advocates and attorneys, ask how long they have been working in the special education arena, how they got started, what their experience is in working with children with special needs, what their educational background is (do they have undergraduate or graduate degrees in teaching,or in working with children with special needs?), how long they have been doing what they do, have they ever worked in a school or classroom, have they been involved in mediation, resolution, due process hearings, and the outcomes.  For attorneys, ask if they have gone all the way to hearing and the outcomes, and ask about their trial experience in addition to their experience handling due process.  

Attorneys practice the law.  An attorney is a professional dispute resolver and understands how to utilize dispute procedures.  They can negotiate directly with the school's attorney, which is often more efficient than attending multiple IEP meetings.  

Once disputes arise, there are different ways to try to resolve, including informal meetings, administrative complaints, mediation, and due process.  An attorney is generally not required but a parent may want to consult with one, and the attorney can advise the parent.  Some states allow a parent to help them at due process, but only an attorney may engage in the practice of law.  Attorneys attend law school, must pass a bar exam, receive a law degree, and must be licensed in the state(s) in which they practice.  They are regulated by the State Bar and many are rated (AV, BV or CV).    

Working with an attorney to resolve a dispute can make a difference. An attorney’s knowledge of the legal system and ability to evaluate the strength of your side of a dispute is very important. Attorneys narrow down and clarify complex issues (focus), write and apply facts to the law (communicate), and utilize the legal system (strategy) to achieve the best possible outcome.  Attorneys can review records, identify issues, and advocate for a quick resolution of a dispute at meetings, through letter writing, or formal complaints. If a dispute goes to hearing, attorneys are trained on how to write complaints, motions, closing briefs, presenting issues, using and objecting to the introduction of inappropriate or non-relevant evidence, questioning witnesses, and making opening and closing statements.

Although there are differences, there is a lot of crossover between advocates and attorneys in special education.  An advocate must understand the structure of the law and how to work within it to obtain results. An education attorney can identify the issues and guide the parent and the non-lawyer advocate.  When disputes arise, an attorney can advise on how best to resolve.  A non-lawyer advocate cannot give legal advice, is not properly trained to represent a child at hearing, and cannot appear in, or appeal to, state or federal court on behalf of a child or the parent.

Advocates and attorneys work well together because of their differences.  Advocates should know when an attorney is needed, and should recognize when a disagreement is a legal dispute. Attorneys can help navigate disagreements and provide guidance to avoid problems because of their understanding of the law, the legal system and how it applies to special education.  Parents should understand the difference between “educational advocacy” and “legal advocacy and representation” because both advocates and education attorneys “advocate” for you and for your child. 

Kirsch-Goodwin & Kirsch, PLLC

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