Wrightslaw: From Emotions to Advocacy
The Special Education Survival Guide by Pam Wright & Pete Wright
The Special Education Survival Guide by Pam Wright & Pete Wright
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Before You Retain an Attorney by Jennifer L. Bollero, Esq.
Here are some questions to ask before you retain an attorney. Make sure the attorney is:
Licensed to practice law in your state
To practice law, an individual must graduate from an accredited law school and pass the state bar examination. He or she will then be sworn in and given a license to practice law within the state. The state supreme court, or other regulatory agency, will assign an attorney identification number that shows the status of the attorney (in good standing, suspended, disbarred).
Attorneys must adhere to ethical codes of conduct. All attorneys owe duties of confidentiality to their clients.
Every lawyer has a dual role as an advocate and as an officer of the court. Besides working in their clients best interest, lawyers are legally bound to honor the law, and to represent the law accurately to the court.
This dual duty is what drives the attorneys need for solid evidence. This dual duty also protects the client on many levels.
Lawyers can be sued for negligence (malpractice), or they can be brought up on disciplinary charges before their state supreme court for unethical conduct. The practice of law is highly regulated, and attorneys must answer to clients, legislators, and judges for their conduct.
Familiar with federal and state special education law and procedure
Special education laws and regulations are complex at the federal and state level. For an attorney to be effective, he or she must have a basic command of the IDEA, Section 504, and the ADA. He or she must also have a command of the federal regulations that stem from these statutes.
Each state has laws and regulations that effect special education. A good lawyer is familiar with these as well.
And thats just the statutes!
All federal and state statutes are subject to judicial interpretation. When people sue to enforce a statute, a judge must interpret the statute to the facts at hand. The result is called a judicial opinion or case law.
Attorneys must understand these statutes and regulations, and how judges and due process hearing officers have interpreted these statutes and regulations in differing sets of facts.
This interweaving of different legal sources is at the heart of the practice of law.
Since these sources of law change constantly, the good lawyer must keep abreast of them.
Experienced in handling special education matters
Once an attorney knows what the law expects of the parties, he or she must be able to navigate effectively the various jobs at hand.
Ask your attorney how long he or she has been in special education practice, whether he or she has handled similar cases to yours, and what sorts of outcomes he or she has obtained for previous clients.
Find out if your attorney knows the other attorney in your case, and what their past experiences have been.
Well Supported in the Office
Attorneys can be part of large firms or in solo practice. Some attorneys have secretaries, paralegals, and clerks who work for them. Others do everything themselves. The amount of support an attorney has will affect the attorneys cost and effectiveness. At a minimum, all attorneys should have:
Clients need to be able to send and receive timely messages to and from their attorneys. Even those attorneys with secretaries should provide clients with reliable voicemail and emailing options. This allows the clients to leave detailed messages directly with their attorneys.
With special education law changing rapidly, attorneys should have access to electronic research so they can keep current. Many attorneys employ paralegals or legal assistants to help with research projects.
If you will meet with an attorney, the meeting should take place in a private room, with a door that can close, for privacy.
Even if an attorney comes to talk to you, he or she should be sensitive to the need for a private conversation, away from other adults who could overhear. This privacy is necessary to preserve the attorney/client privilege. It is this privilege that allows the attorney to keep the clients secrets.
Also, an attorney should be reluctant to speak to a client regarding a case while on a speakerphone or a cell phone. Speakerphones are convenient for hands-free conversations, but the other party may not be aware if others are listening in. Similarly, cell calls can be intercepted, or overheard if the attorney is taking the call in a public place. A good attorney will reschedule a conversation if he or she believes that the clients privacy could be jeopardized.
All attorneys in special education matters, whether they represent parents or schools, must be sensitive to the needs of the child at hand. The law places children in a privileged position. All courts assume a heightened level of care when the outcome of a case will affect a child.
In special education matters, attorneys must be able to reconcile their behavior with the needs of the child. An attorney who is focused on winning at all costs is unlikely to produce a solution that meets the needs of the child.
Sensitive to the need for the client to make the decision
all attorneys can do is advise clients on a recommended course
of action. No attorney should usurp the role of the client in
making an ultimate, informed decision on how to proceed in a case.
About Jennifer Bollero
Ms. Bollero received her undergraduate degree from Northwestern University and her Juris Doctor degree from Loyola University of Chicago School of Law. She is a former member of the adjunct faculty at Elgin Community College Paralegal Program, and serves on the Professional Advisory Committee of the Autism Society of Illinois and the Illinois Attorney General's Special Committee on Special Education. Ms. Bollero is a former special education mediator for the Illinois State Board of Education. She has authored numerous articles on special education and has conducted a variety of seminars on school topics in Illinois and nationally. In her seminars, she teaches how to effectively, calmly, and productively navigate an I.E.P in a way that everyone "Plays well together". She brings years of personal as well as professional experience. She will show us how Playing Hearts Not Poker is in the best interest for our child.
Copyright © Jennifer Bollero, Esq. All rights reserved. Do not use without permission.
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