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School attorneys raise concerns about lay advocates

vsb-150x150_mainTwo Virginia federal judges are wrestling with the status of unlicensed advocates in special education cases, an issue that has raised concerns for school representatives and the Virginia State Bar.

One judge declared that a lay advocate is not entitled to privileges that would normally protect a lawyer’s communications with clients. Another judge is being asked to decide whether an unlicensed parent advocate can use the federal courts to enforce his claim for fees.

Special education law allows parents to bring knowledgeable, non-lawyer advisers to school meetings and due process hearings, but state and federal rules are unclear how far lay advocates can go in representing disabled students and their parents. School lawyers say lay advocates, including a disbarred Virginia lawyer, are pushing the envelope in cases involving the Henrico County and Virginia Beach school systems.

Other school attorneys are urging limits through rules governing unauthorized law practice, but VSB leaders may be reluctant to draw boundaries in a legal arena controlled mainly by education statutes and regulations.

No privilege for lay advocates

Two unlicensed advocates are involved in a family’s legal dispute with the Henrico County Public Schools, now before Senior U.S. District Judge Robert Payne. One is former Virginia lawyer Sa’ad El-Amin of Richmond, who was disbarred in 2002. The other is special education advocate Kandise N. Lucas of Sandston.

The school system contended the student’s family may have secretly moved out of the school district earlier this year. The move could affect the family’s entitlement to school services.

When school lawyers sought to learn if the family’s advocates were aware of the move, Lucas tried to block a subpoena for her communications with the family, calling it a “fishing expedition.”

Payne responded by demanding to know who was helping Lucas craft her pleadings. Lucas identified a college professor who provided assistance. Lucas also contended her client communications should be protected because, like a lawyer, she has a responsibility to protect the confidentiality of her clients. She cited a Virginia statute allowing the assistance of representatives such as Lucas in administrative hearings.

The school board’s lawyers disagreed. “Lucas is attempting to read into the statute a privilege where none was granted by the statute,” wrote attorney Kathleen S. Mehfoud of Richmond. Mehfoud is one of a group of attorneys at the ReedSmith firm who regularly represent Virginia school districts in special education disputes.

Payne sided with the school system.

“Ms. Lucas is not an attorney and, therefore, can invoke neither the attorney-client privilege nor the work product doctrine,” Payne wrote in an Aug. 8 order. Despite the Virginia statute, “no Virginia statute or regulation confers any privilege upon communications between Ms. Lucas and the defendants,” Payne said.

Payne added that, even if Lucas could claim a privilege, evidence of fraud connected with the family’s move was sufficient to apply the crime-fraud exception to the privilege.

Payne’s order is Henrico County School Board v. Matthews (VLW 018-3-340).

In the federal case, the Henrico schools seek to overturn a hearing officer’s ruling that the division owes private school tuition for the autistic student. The schools’ pleadings accused the lay advocates of name calling and other inappropriate remarks at an administrative hearing.

Both Lucas and El-Amin were scheduled to sit for depositions on Aug. 21 and 22.

In a separate action, Lucas and two others have filed a $10 million civil rights lawsuit claiming they were wrongfully charged and convicted of trespassing at a Henrico school. In addition to school officials, the defendants include two prosecutors and Henrico General District Judge L. Neil Steverson.

Lucas was not available for comment.

Claim for fees

In Norfolk federal court, the Virginia Beach school system is trying to block El-Amin from participating in a special education action. El-Amin says he represented the parents and their child in a due process hearing under the federal Rehabilitation Act of 1973. He is asking to be allowed to defend his right to seek reimbursement for his services.

“His Motion … amounts to an impermissible attempt to practice law in federal court without a license,” wrote Danielle Hall-McIvor, a Virginia Beach associate city attorney. She said fee shifting under the Rehabilitation Act is limited to attorney’s fees, not compensation for non-lawyer advocates.

The dispute over El-Amin’s standing is pending before U.S. District Judge Mark S. Davis.

El-Amin sees the distinction between fee awards for attorneys but not for lay advocates as “elevating form over substance.”

“Lawyers for the school system are paid for their services, win or lose. Why shouldn’t I be paid when I win?” El-Amin said in an interview.

Uncertain boundaries

Concerns about unqualified or unrestrained lay advocates were raised last month when the VSB invited comments on regulation of the unauthorized practice of law.

A VSB study panel sought to clearly define the practice of law and when non-lawyers can participate. Proposed rule language reflected existing law that parties appearing before special education hearing officers may be represented by non-lawyers without violation of state law.

Kamala H. Lannetti, deputy city attorney for public education in Virginia Beach, said concerns about unregulated parent advocates have “grown exponentially” in recent years. The topic is frequently discussed by members of the Virginia Council of School Attorneys, Lannetti said in a letter to the VSB.

“It is a serious disservice to parents and students with disabilities to be misled into believing that they are receiving adequate legal advice by persons unauthorized to practice law,” Lannetti wrote.

A similar letter came from ReedSmith attorney Patrick T. Andriano. He said lay advocates face few repercussions for improper behavior.

“Without the imposition of ethical standards, lay advocates are free to make legal and factual misrepresentations to parents, school administrators, school division attorneys, and hearing officers without consequence,” Andriano wrote.

Lannetti said well-qualified lay advocates are not the problem. Difficulties generally arise with parents who battled school officials on their own cases and then took up the cause as advocates for other parents, Lannetti said in an Aug. 15 interview.

Solving special education disputes should involve collaborative advocacy, she said, but some parent advocates make it a war.

“Our biggest concern is that kids and families are not getting the advocacy they need. They’re getting bad advice,” Lannetti said. And often at a price, she added, since many lay advocates charge hefty fees for their services.

Reading into the statutes

A key question is the extent to which an unlicensed person can advocate in front of a hearing officer or a court on behalf of a special education student. A Virginia statute appears to confer more freedom for a lay advocate than federal law contemplates.

In the special education law first passed in 1975, Congress said a party at a hearing or an appeal can be “accompanied and advised” by individuals with special knowledge or training. But Virginia law goes further. A Virginia statute, Code § 22.1-214 (C), says parents have the right to be “represented” by counsel or “other representative” in a special education hearing.

The terminology presents a conundrum for the VSB Standing Committee on Legal Ethics.

“The committee has been struggling to determine what these terms mean,” said VSB Ethics Counsel James M. McCauley. Could a parent’s lay advisor be forced to sit quietly at a hearing “like a potted plant?” he queried.

McCauley said there are access-to-justice issues at play. It’s hard to find competent counsel and the cost can be prohibitive, he said. Another factor is accepted custom or practice in special education matters.

“If hearing officers are letting them represent parents at these hearings, it’s difficult for the bar to issue a pronouncement on the subject,” McCauley said. He said the bar has received only one complaint about unauthorized law practice in a special education matter, and that involved behavior far removed from typical concerns.

Lannetti’s letter to the bar said lay advocates should be prohibited from arguing case law or submitting legal analysis. So far, however, schools’ efforts to limit special education advocacy by non-lawyers have proved fruitless.

“We feel like we’re in this endless circle of agencies who don’t want to do anything about it,” Lannetti said. “At some point, lawyers have to say, ‘This is what it means to practice law,’” she added.

She urged the VSB to work with the state Department of Education to more clearly define the role that lay advocates may take in providing representation in administrative hearings.

Specifying limits and checks on lay advocates may not be a matter for the VSB to fix, McCauley said.

“It might be up to the Board of Education to work out a definition and scope of what lay advocates are permitted to do,” he said.

Updated Aug. 16 to note no comment from Lucas, to add comment from El-Amin and to clarify that the VSB UPL proposal was reflective of existing law.

VLW 018-3-340