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 Ask the Attorney - Q and A

Question:  Are there attorneys who represent students/parents rights on a fee based on income and/or contingent on outcome? Our school district has on several occasions not provided services requested and included in the IEP. Thank you.


Answer:  There is no easy answer to this question as each attorney or law firm decides for itself how they handle their billing practices. At the same time it is important to be aware that the few attorneys in the state that regularly represent parents are mostly sole practitioners or members of small law firms. Therefore, just like any business person, they need to insure that they receive an income for their services and funds to pay the costs of operating a law office. It is also a fact that as the relationship between an attorney and a client is one based on the exchange of confidentiality, what a client pays or does not pay is not a matter for general discussions. Therefore, each office or attorney establishes their own method of billing and may apply that method to all new clients or may vary the method depending on any number of factors. 


In terms of how I operate my office, I have a pretty standard procedure I have developed over the years. After a brief telephone interview, and before agreeing to represent a new client, I ask to see a copy of the child's school records. After I review the records I then hold a "consultation meeting" with the potential clients. I charge a fixed fee for the review and the meeting. If we mutually agree that legal representation is needed (many times the parents take the information they learned during the consultation and proceed to handle the dispute themselves) I then discuss with the parents my hourly rates, the amount of the initial retainer, how they are going to pay for my professional services, the various costs associated with the representation (expert witnesses fees, filing fees, court reporter fees, etc.) and the possible outcomes, both good and bad. Their ability to pay, the need for a monthly payment plan after payment of an initial retainer, etc. are all discussed in confidence and what we agree to is contained in a written retainer agreement. In terms of accepting contingency fee cases, the practice of my office is to limit the cases it will consider representing on a contingency fee basis is to those cases involving permanent physical injuries that occurred in a school setting.


For parents of low or moderate income there are some alternatives. Depending on a parent's income and the availability's of attorneys trained in school law, your local Legal Aid offices may provide assistance. The law schools also have legal clinics that may provide supervised assistance of third year students at no charge. Michigan Protection and Advocacy Services (P&A) will provide no cost legal services if the matter meets their annual criteria. If a free speech issue in involved, the ACLU may be interested. Also, some attorneys may be willing to take cases on a contingency fee basis or for a reduced fee. Lists of attorneys who are interested in this area of the law are available from any number of public interest groups including the Council of Parents Advocates and Attorneys (COPAA), Michigan P&A, and others.


As to the second part of your question, if services detailed in an agreed upon IEP are not being provided, the parent should document the lost service in a letter to the school, and if not resolved, file an administrative complaint with the local ISD. In that complaint they need to detail the failure to provide what was agreed to. They also need to note that if their complaint is found valid, they are requesting an award of "compensatory educational services" to make up now for what was not provided then.


John Brower, JD
Education Law Center, PLLC

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