Can a school attorney attend an IEP meeting if the parent attorney does not?

Excerpted from an interview of attorney Hope Kirsch to LRP:

Parent attorney isn't coming to IEP meeting, but school attorney is? Watch your step

The case manager has all the documents ready and is just a couple of hours away from beginning the IEP meeting. Then the parent attorney calls to say she can't make it to the meeting.

Can the IEP team and school attorney continue with the meeting, despite the parent attorney's absence?

The Office of Special Education Program's position is to "strongly discourage" attorney attendance at IEP meetings in general. Notwithstanding any strict reading of the law, "an attorney's presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child." Letter to Clinton, (OSEP 2001).

If a parent attorney gives permission to hold a meeting without her, school team members must be careful about involving their school attorney. Otherwise, the parent may feel intimidated and argue he was not allowed to meaningfully participate in the IEP process. Practicing the dos and don'ts below may ensure an appropriate IEP meeting occurs when a school attorney attends without a parent attorney present.

Do consider rescheduling. If your relationship with the parent attorney is tenuous and there is a history of the parent's lack of trust, it may make sense to reschedule the meeting rather than continue with just the school attorney, said Hope Kirsch, a parent attorney at Kirsch-Goodwin & Kirsch PLLC in Scottsdale, Arizona. "It would be rescheduled unless it's an attorney I trust," she said. "I [would need to] know that this school attorney is going to make sure that their school does the right thing."

Don't overlook alternative participant. If the parent attorney gives the OK to meet without him, you may want to suggest that the parent bring an advocate or other person for support so the meeting doesn't feel one-sided, Kirsch said. "When the parent doesn't have an attorney, ... it can be seen as a form of intimidation," she said. "It can feel like you're on trial."

Do be mindful of the provision of advice. Make sure the school attorney doesn't appear to give any advice to the parent in the absence of his attorney, Kirsch said. The attorney also should not be making any determinations. "They have to be careful; this is an ethics issue," she said. "Remember that attorneys are not part of the IEP team. They will sign the attendance sheet, but they are not involved in making decisions."

Don't neglect documentation. Take meeting notes when possible so the parent attorney can review them later, Kirsch said. Or allow parents to record the meeting while also making a district recording. "I tell parents just to record it so there's a record of it," she said. "It's good practice." It can help in case someone isn't truthful about the meeting afterward, Kirsch said. For example, a parent may say a school attorney was adversarial, but the recording may show that everyone's behavior was appropriate.

Do ease parent concerns. Ensure the parent understands why the school attorney is attending without the parent attorney, Kirsch said. Let her know that meetings sometimes get heated or you want to make sure your school team is conducting the meeting appropriately. You can say, "We want to make sure everything goes well," she said. "Our attorney is there to help us do the right thing for your child."

Remember to include the school attorney's name on the notice of the meeting so that the parent knows ahead of time that he will be there, Kirsch said. Ultimately, if parents are uncomfortable with the arrangement, they can request a facilitated IEP meeting with a neutral third party.

November 11, 2024