29 Apr 2006 Parents May Be Fined for Helping Their Own Son

The Cleveland Bar Association has made an outrageous decision: It is attempting to get an Ohio couple fined because they went to court on behalf of their minor son without hiring a lawyer.

Says the Cleveland Plain Dealer:

The bar charged [Brian and Susan Woods] with unauthorized practice of law and threatened a $10,000 fine, saying that although the Woodses were allowed to represent themselves, they could not act as lawyers for their son. The charge is normally filed against nonlawyers who provide legal services for pay, but is rare against parents.

The parents largely won the case for their son, settling it after the school district agreed to send their son, who has autism, to a private school.

More from the Plain Dealer:

Michael Harvey, the Rocky River lawyer handling the charges for the bar association, said the goal is to protect the rights of children. Harvey said special education laws are so complex that children need experts, not untrained parents, looking out for their rights.

“You hope parents will do the right job for the child, but that’s not always the case,” Harvey said.

Harvey said that although the bar is officially seeking a $10,000 fine, it would be happy with an admission that the Woodses broke the law and an agreement not to do it again.

Brian Woods thinks he’s being intimidated to prevent parents from handling cases themselves – and to protect the large fees lawyers charge for such cases, which can easily run into the tens of thousands of dollars.

The parents, in suing the public schools, were suing the government. The government has a law saying they can’t handle the case on the child’s behalf without professional help — apparently because the consequences to the child of losing to the government are excessively dire.

The government would do better to can the laws saying people need professional help to fight the government and instead run a government people don’t need to fight.

Addendum, 10/30/06: On Oct. 27, 2006, the U.S. Supreme Court agreed to decide if the parents had the right to appear in court without a lawyer.

An AP report says, in part:

Justices to Take Up Autism-Case Dispute

WASHINGTON, Oct. 27 (AP) – The Supreme Court agreed Friday to consider an appeal by an autistic child and his parents, who want to sue over his school accommodations without hiring a lawyer.

The parents, Jeff and Sandee Winkelman, say they cannot afford a lawyer to argue their court case against the school district of Parma, Ohio, near Cleveland, over the education of their son, Jacob.

The federal appeals court in Cincinnati ruled that the Winkelmans, suing under the Individuals With Disabilities Education Act, had to find a lawyer to represent Jacob, although other federal courts have ruled differently in cases involving that law.

The Bush administration then urged the justices to take the case, saying that in adopting the measure, Congress clearly intended that parents be able to represent their children in such court proceedings.

The Winkelmans’ suit contested Parma’s plan to educate Jacob at a public school. They wanted the district to pay his yearly tuition of $56,000 at a private school that specializes in educating autistic children.

Whether Jacob should have private schooling at public expense is not before the justices, only the question of his parents’ right to go into federal court without a lawyer….

Addendum, 5/23/07: The U.S. Supreme Court has now weighed in — on behalf of the parents.

Says Tony Mauro, writing for Legal Times:

Parents do not need to hire lawyers to litigate public school special education disputes involving their children, the Supreme Court ruled Monday.

The 7-2 decision in Winkelman v. Parma City School District says parents have “independent, enforceable rights” in a free, appropriate education for their children under the Individuals With Disabilities Act. As a result, they can pursue those interests not just at the administrative appeal stage, but into federal court as well.

“It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child,” Justice Anthony Kennedy wrote for the majority, adding that “a parent of a child with a disability has a particular and personal interest” in pursuing equal opportunities for the child.

The opinion did not disturb the longstanding rule that pro se litigants can only represent themselves, not others. Kennedy said there was no need to rule on that issue because the Court was saying that parents, in pursuing these claims, are enforcing their own rights, not just the rights of their children.

The ruling came in the case of Jeff and Sandee Winkelman, who were dissatisfied by the educational plan devised by the Parma, Ohio school district for their son Jacob, who has autism spectrum disorder. When administrative appeals ended, Sandee Winkelman, a nurse, schooled herself in legal procedure and took the case to federal court. But the U.S. Court of Appeals for the 6th Circuit ruled that parents could not litigate under IDEA, setting the stage for their high court appeal.

School districts, claiming that the cost of special ed litigation goes up when parents rather than lawyers are involved, fought against parental representation. In some cases, local bar groups have also complained that parents without lawyers were engaged in the unauthorized practice of law.

But parents said the high cost of legal fees, as well as the dearth of lawyers willing to take on these often-complex lawsuits, made self-representation necessary…

There’s more. Read the rest here.

Labels: Education, Legal Reform, Regulatory Victims