I am often asked by prospective clients and parents of children with special education needs who attend workshops and speeches I give: “I know I need some help at my child’s IEP meetings, but should I hire a special education advocate or a special education lawyer?” It’s an excellent question, and in a very lawyerly fashion, I usually respond “it depends.” Really, there are no absolutes as to whether a case calls for an advocate or an attorney, but there are some things you should consider.
Everyone knows what an attorney is, but what is an “advocate”?
In general, what I am referring to when I talk about special education advocates are non-attorneys who have background and experience in navigating the complex processes of the IDEA. These people offer their services to families to help them review records, attend IEP meetings, direct them to proper evaluators, and, sometimes, refer them to a special education lawyer. Some advocates have a particular background or expertise in a specific disability, like autism or dyslexia, and others who provide more general advocacy support. There are advocates that work for public agencies and advocates in private practice.
Quality Special Education Advocates serve a vital role in securing Free and Appropriate Public Educational programs for kids with disabilities.
I can’t say enough for the fantastic advocates I know who are providing necessary guidance to parents every day, throughout the country. I have been privileged to work with many of them over the years, and I have also mentored a few. Especially in states where there are very few or no special education attorneys available to parents, I know without a doubt that lay-advocates have saved thousands of kids from special education disaster.
If you are considering bringing in a special education professional to advocate for your child under the IDEA, but can’t decide whether you should find an attorney or an advocate, I am going to list the “pros and cons” of bringing in an advocate instead of a special education lawyer below. However, this list is important to consider in the context of my previous post on those circumstances where I believe having a special education lawyer is a “must”:(http://www.connecticutspecialeducationlawyer.com/tips-for-parents/when-do-i-need-a-special-education-lawyer/).
Benefits of hiring a Special Education Non-Attorney Advocate
- Almost always less expensive than a private attorney;
- In general, bringing in an advocate is not as aggressive a move as bringing in an attorney;
- The school district is not likely to have their attorney present at meetings involving a lay-advocate, but usually will bring in counsel if you have a lawyer;
- Some advocates have specific backgrounds in developing IEP goals and objectives, which many attorneys do not see as their role;
- Many advocates are successful in resolving the dispute at the IEP level, without the need for proceeding to the next level in Mediation or Due Process;
- Advocates can talk directly to the special education administrator or staff, whereas in most cases special education attorneys must go through the school district’s attorney for ethical reasons;
- In my experience, there are more advocates who chose to get into this field because they went through the process on behalf of their own child than there are attorneys who have done the same. This makes sense, it would take a huge commitment of time and resources for a person who isn’t already an attorney to start down that road after having children simply to become a special education lawyer. If your advocate has “been there” as a parent, it can be very comforting and builds trust;
- Experienced advocates often have good relationships with the parents’ attorneys in your area, and will sometimes “pick their brains” on your case, without you having to pay the much higher hourly rate for the lawyer’s time;
- The best advocates know when a situation has reached the point that a parent needs to bring in a special education attorney, which many parents would not have known otherwise.
Potential risks to having a non-attorney special education advocate advising you on your child’s case:
- Most places (including Connecticut where I practice) do not regulate who can hold themselves out as a special education advocate. Virtually anybody with a pulse could start a business calling themselves an “advocate.” Therefore, parents must research advocates to make sure that they are reputable.
- You could spend a lot of time and money on an advocate, and if the parties remain in dispute and the parents have to hire an attorney, a new person will have to be “brought up to speed” and you might have to start from scratch.
- Again, since there are more advocates who chose to get into this field because they went through the process on behalf of their own child than there are attorneys who have done the same, sometimes, an advocate who went through a horrible fight on with their school district is reliving that experience through your case, or ascribing attributes to some professionals based on how their child was treated or viewed, instead of yours.
- Your school district might not take your case as seriously if you have an advocate instead of an attorney;
- Getting reimbursed by your school district for advocates’ fees is extremely difficult, whereas there are specific provisions for reimbursement of attorneys’ fees under the IDEA;
- Your advocate might not realize the legal impact of some of the statements or actions taken on your behalf, and if you later try to explain that you were not aware that you should have said or done something differently, it will be presumed that you had the advice of someone knowledgeable about the IDEA;
- Most states have very specific requirements about who is allowed to “represent” (as opposed to “advise”) parents at Due Process Hearings, and often non-attorneys are not allowed to handle the case.
- If you’re heading to a Due Process Hearing anyway, having a lawyer from the beginning in some cases actually saves money, because school districts often settle more readily.
Keep in mind, some of the “risks” associated with hiring an advocate also apply to hiring lawyers!
As an example, you want to make sure the attorney you’ve hired to represent you under the IDEA has experience in special education law, just as you check into the reputation of a special education advocate. In addition, there are some attorneys who, just by their mere presence at an IEP meeting, dramatically alter the dynamics of the relationship between you and your school district. On the flip side, there are some advocates who are more feared, and sometimes outright disliked, by districts than the parents’ attorneys in your community.
The bottom line is this: you do not necessarily have to be alone in this process. Special Education attorneys and advocates are available to help. There is no litmus test for any one case to tell you whether you need a lawyer, an advocate, or neither, but you should be considering all of these things as you make a decision.