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Article of Interest - Special Education

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Bar Association Battles Parents
Patrick O'Donnell, Cleveland Plain Dealer, April 27, 2006
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The Cleveland Bar Association is threatening to fine the parents of an autistic boy $10,000 for not hiring a lawyer when they brought, and largely won, a court case on their son's behalf four years ago.

After a long court battle, Brian and Susan Woods settled their case with the Akron school district in 2002 when the district agreed to send Daniel, now 11, to a private school.

But in February, the Cleveland Bar Association took issue with the Woodses' handling parts of that case themselves and not through a lawyer.

The bar charged them 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 non-lawyers who provide legal services for pay, but is rare against parents.

Representatives of several advocacy groups - plus the National School Boards Association, the American Bar Association and the Ohio bar's Committee on the Unauthorized Practice of Law - could not recall any cases of parents being charged with this misdemeanor offense.

Last week, the Ohio Supreme Court, which will ultimately decide the case, ordered the bar to present evidence on why the case should not be dismissed, saying it appeared that "Woods has not engaged in the unauthorized practice of law."

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 purpose of this is to harass us," said Woods.

He said parents' and children's interests are so intertwined in such cases that separating them is impossible. Federal law gives parents a role in determining their children's special education plan.

Woods also said the charges are unfair because courts had not specifically ruled against parents handling special education cases until 2005. Federal courts handling other regions of the country have allowed it.

Harvey said that courts have long held that nonlawyers cannot represent others and that courts covering Ohio have made no exceptions for parents of special education children.

The Woodses and the bar association also are involved in a long-running battle over the separate but related case of a Parma family, which is now being appealed to the U.S. Supreme Court.

Since 2004, the bar association has been investigating whether Brian Woods improperly advised Jeff and Sandee Winkelman, whose autistic son attends the same school as the Woodses' son, in their case against the Parma school district.

The Winkelmans are now asking the U.S. Supreme Court to decide whether parents can represent their disabled children in federal court.

The Parma district's lawyer complained to the bar that Woods appeared to be working with the Winkelmans on their court filings.

In a letter to Harvey, the Winkelmans said that they had discussed their case with Woods, he had attended a hearing with them for moral support and he lent them his laptop computer when their own computer was broken.

Woods has refused to return Harvey's phone calls about either case and has not responded to multiple subpoenas, each time saying they were invalid because of errors.

The Cleveland Bar Association's charges against Brian Woods in the Winkelman case are pending before a state board, which will give its recommendation to the Ohio Supreme Court.

Advocacy groups for parents and disabled children have called the charges against the Woodses - as well as subpoenas of the Winkelmans to testify about Brian Woods - "egregious" and an unfair hindrance to parents trying to help their children.

Brian Wolfman, a lawyer for the Public Citizen group in Washington, D.C., who has helped with the Winkelmans' Supreme Court appeal, called the investigations and charges a "misuse of resources" that could be better spent on reforming laws. Families, he said, should be treated as a single unit in education cases.

    

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