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825 North Capitol Street, NE, 6th Floor MEMORANDUM TO: Attorneys Who Represent Parents Who Prevail Against the D.C. Public Schools in Actions Brought Under the Individuals With Disabilities Act FROM: Paula Perelman, Executive Director, Mediation and Compliance DATE: August 31, 2001 SUBJECT: Attorneys' Fees Attendant to Special Education Settlement Agreements As you may know, on May 29, 2001, the U.S. Supreme Court issued a decision in Buckhannon Board and Care Home, Inc., et al., v. West Virginia Department of Health and Human Resources, et al., in which it held that the term "prevailing party" does not include "a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." The D.C. Public Schools (DCPS) reads this decision to mean that DCPS is obligated to pay attorneys' fees attendant to settlement agreements executed by DCPS attorneys and attorneys representing parents, who have filed hearing requests alleging DCPS violations of the Individuals With Disabilities Education Act (IDEA), only if the payment of such fees is a negotiated item in the settlement agreement involved. Therefore, effective September 1, 2001, DCPS will not pay attorneys' fees incurred in the course of executing a settlement agreement with an attorney representing a parent alleging a DCPS violation of the IDEA unless the payment of those fees is a negotiated term of the settlement agreement in question. DCPS will pay attorneys' fees attendant to settlement agreements executed before this date that include no language regarding attorneys' fees to the extent permitted by law. In so doing, however, DCPS admits to no liability for the payment of such fees. cc: All Special Education Attorney Advisors IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIACHRISTOPHER MARCUS JOHNSON, ET AL., plaintiffs V. DISTRICT OF COLUMBIA, Defendant CIVIL ACTION NO. O1CVO0518 EMERGENCY MOTION FOR ORDER BARRING IMPLEMENTATION OF POLICY ANNOUNCED IN AUGUST 31, 2001 PERELMAN MEMORANDUM PENDING DISPOSITION OF THE CASE AT BAR Come now plaintiffs, by counsel and move the Court for an order barring the District of Columbia Public Schools (DCPS) from implementing the policy announced in the August 31, 2001 Paula Perelmen Memorandum (Perelman Memorandum), attached hereto as Exhibit 1, pending disposition of the case at bar. As their statement of grounds therefor, plaintiffs respectfully show the Court as follows: 1. On or about August 31, 2001, DCPS issued the Perelman Memorandum, directed to "Attorneys Who Represent Parents Who Prevail Against the D.C. Public Schools in Actions Brought under the Individuals With Disabilities Act." 2. In that Perelman Memorandum, DCPS seeks to impose an unlawful ethically conflicted burden on parents' counsel, and to deny parents due process, by DCPS's requirement that, "effective September 1, 2001, DCPS will not pay attorneys' fees incurred in the course of executing a settlement agreement with an attorney representing a parent alleging a DCPS violation of the IDEA unless the payment of these fees is a negotiated term of the settlement agreement in question." 3. In the case at bar defendant District of Columbia compelled waiver of attorney's fees as a condition of a settlement agreement. Plaintiffs' have asserted throughout the administrative and judicial proceedings that such compulsion of waiver of attorney's fees was a denial of the parent's due process rights under the Individuals With Disabilities Act (IDEA), 20 U.S.C., Sec. 1400, et seq.; 4. Through its unilateral promulgation of the Perelman Memorandum, without following any administrative procedures and safeguards, including the opportunity for public comment, DCPS seeks to anticipate, obviate, and moot any decision this Court may render on the case at bar by compelling parents' counsel to immediately, as of September 1, 2001, engage in negotiations that create differing interests between counsel and client, and thus raise the most basic and obvious ethical issues for parents' counsel; 5. Before filing this nondispositive motion, undersigned counsel faxed a copy of the Perelman Memorandum to opposing counsel, noted his intent to file this motion, and requested a response thereto by close of business September 4, 2001. Counsel also discussed this matter with opposing counsel by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought, and to narrow the areas of disagreement. This motion is opposed. WHEREFORE, plaintiffs move the court for entry of its order barring the District of Columbia public schools from implementing the Perelman Memorandum until such time as this Court has ruled on the underlying merits of the case at bar, and for all other relief that is just and proper in the premises. Respectfully submitted; POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' EMERGENCY MOTION FOR ORDER BARRING IMPLEMENTATION OF POLICY ANNOUNCED IN AUGUST 31, 2001 PERELMAN MEMORANDUM PENDING DISPOSITION OF THE CASE AT BAR I. BACKGROUND As noted in plaintiffs' motion, the District of Columbia Public schools (DCPS) has issued the Perelman Memorandum, directed to "Attorneys Who Represent Parents Who Prevail Against the D.C. Public Schools in Actions Brought under the Individuals With Disabilities Act". That Perelman Memorandum provides that
Plaintiffs contend that the foregoing language creates impermissible differing interests between an attorney's financial interest in receiving payment for his legal services, and the parent's interest in obtaining a beneficial settlement for her child without an administrative hearing or judicial trial. In support of their motion, plaintiffs adopt by reference and rely on their Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss, filed May 16, 2001, and their Plaintiffs' supplemental Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss, filed June 11, 2001. In addition thereto, plaintiffs submit the following additional argument. II. ARGUMENT The District of Columbia Public Schools (DCPS) is required by law to provide a free appropriate public education to children with handicaps, 20 U.S.C., Sec. 1400, et seq., 20 U.S.C., Sec. 1415(i)(3) (IDEA). In so doing, the District of Columbia Public Schools (DCPS) may not gainsay the importance Congress attached to the statutory and regulatory procedural safeguards. Congress considered procedural due process to be every bit as important as substantive due process. Hendrick Hudson District Board of Education V. Rowley, 458 U.S. 176, 205-206 (1982). As part of that procedural due process, a parent is entitled by statute and regulation to counsel during every phase of an administrative proceeding under IDEA. 20 U.S.C., Sec. 1415(h)(1), 34 Cm, Sec. 300.509(a), and 5 DCMR, Sec. 3021.2, That counsel must represent the parent zealously and diligently within the bounds of the law. D.C. Rules of Professional Conduct, Rule 1.3. That counsel must not be conflicted, and may not represent a parent where counsel's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's own financial interests. D.C. Rules of Professional Conduct, Rule 1.7. The Court, not DCPS, has the authority to exercise its discretion in determining whether to award attorney's fees to the parent of a child with a disability, who is the prevailing party. 20 U.S.C., Sec. 1415, (i)(3); 34 C.F.R., Sec. 300.513. Neither the statute nor regulations authorize DCPS to impose requirements on attorneys regarding how they shall proceed to represent their clients in negotiations, in order to be entitled to recover attorney's fees. The Perelman Memorandum policy is fatally flawed. First, as already noted, DCPS is bereft of authority to impose requirements on recovery of attorney's fees beyond those imposed by IDEA and the regulations promulgated thereunder. Second, the Perelman Memorandum creates an irreconcilable conflict of interest between counsel and client. Further, in the Perelman Memorandum, DCPS obviously intends to place the burden of proof on the parent that the parent complied with the Perelman Memorandum during negotiations. This, of course, DCPS may not do, for DCPS alone always has the burden of proof at every stage of the proceedings to show compliance with procedural and substantive due process. 5 DCMR, Sec. 3022.16. That burden never shifts. Hammond v. District of Columbia, CA No. 99-1723 (D,D.C. March 1, 2001, pages 17-18). Thus, this burden shifting effort by the Perelman Memorandum is contrary to law. The Perelman Memorandum relies on Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, No. 99-1848, 522 U.S ____ (2001). That reliance is misplaced. Buckhannon is not about settlement negotiations. It is not about one party imposing on another party an ethically impossible burden. It is not about compelling an attorney to balance the interests of his client against his own financial interests. It is not about a governmental agency attempting one more time to find a way to frustrate the clear statutory intent of IDEA. It is plainly and simply about prevailing parties, no more, no less. To interpret Buckhannon as the Perelman Memorandum does simply defies logic and the plain meaning of the case. As noted in plaintiffs' earlier filings, it is possible that when Congress adopted the right to counsel provision, and when the Supreme Court recognized the overarching importance of procedural safeguards, both had in mind that sometime, somewhere in this country there would be a DCPS that would act as DCPS has acted over the years, and would attempt what the Perelman Memorandum attempts to do, and that is to continue a pattern of deprivation and circumvention of parents' right to counsel guaranteed by statute and case law. As also noted in the earlier filings, in Kay v. Ehrler, 499 U.S. 433, 111 S.Ct 1435, 1437 (1991) , a prevailing FOIA plaintiff, who was also an attorney who had represented himself, sought attorney's fees. In rejecting the claim for attorney's fees, the Court explained the reasoning behind fee shifting in civil rights cases. There the Court stated:
There the Court made clear that an attorney in a civil rights case must be someone who is free to exercise independent judgment, unencumbered by personal considerations. The exercise of independent judgment is impossible, however, when the parent's attorney's financial interests have been put at issue by DCPS. How much more important in an IDEA case that the attorney be unencumbered by personal considerations, such as the possible impact on his financial interest. How much mare important in an IDEA case that the attorney not be constantly second guessing his negotiation tactics and strategy, testing to determine whether they may offend DCPS. How much more important in an IDEA case that the attorney, who drafts a proposed settlement agreement that will be submitted for approval or disapproval to DCPS, should be free to zealously represent his client, without fear of retaliation by DCPS against his financial interest in being paid. Of even more importance is the appearance. How will a parent every be fully persuaded that her own attorney is negotiating in the parent's best interest for the child, and not in the attorney's financial best interest? In the past DCPS has done a financial calculation of the cost of the relief sought, particularly in compensatory services cases, during the course of the negotiations. What happens if DCPS discloses to counsel that DCPS has a certain total figure available to expend on that particular case, including for both substantive relief and attorney's fees. How will an attorney ever persuade someone who reviews his actions in the future, including Bar Counsel, that he placed his client's interests over his own financial interests? It cannot be done. The appearance of conflict and self-interest is appalling. III. CONCLUSION For all the foregoing reasons, plaintiffs request the Court to grant plaintiffs' motion as stated. Respectfully submitted; |
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