Focus

Limiting Liability for Lawyers’ Fees

by Ryan L. Everhart

I

sat in the federal courthouse’s mediation room, and my jaw dropped upon hearing the figure — $180,000. That was the amount demanded by the parent of a child with disabilities to settle a special education dispute. Ironically, this amount was not for more services, assistive technology or additional tutoring. Rather, the $180,000 was the amount of attorneys’ fees that the parent expended in prosecuting their special education litigation against the school district, my client.

Unfortunately, demands for attorneys’ fees in special education disputes are becoming commonplace. In Lakeland, Fla., the Polk County School District recently settled a special education dispute where the parents were paid $300,000 for attorneys’ fees.

Everhart.jpgRyan L. Everhart

Several other special education matters in the past year have ended in a school district being ordered to pay more than $150,000 in fees to the plaintiff’s attorney.

The prospect of paying such large amounts to the parents of students with disabilities is disquieting to school district leaders. Based on the risk of large legal fee awards, school districts are settling disputes rather than chancing such a substantial payout. Some districts are settling these cases even when they believe their actions were proper and appropriate.

An Early Offer
In many situations, a quick settlement is the right course of action — not just because of the potential costs, but also to repair the school/parent relationship and to amicably move forward in serving the student’s best interests.

But there are times when a settlement is not possible, despite both parties’ best efforts. In those situations, a school district can apply various strategies to limit its potential exposure to legal fees.

Perhaps the most important step a district can take is to make an offer of settlement at least 10 days prior to the commencement of the impartial hearing. Under the Individuals with Disabilities Education Act, a parent’s attorneys’ fees will be cut off from the date of the offer of settlement if (1) the parent rejects the offer; and (2) the parent does not ultimately receive relief in excess of what was offered to him or her prior to the hearing.

This rule can be effective in limiting attorneys’ fees when the school district recognizes there are certain weaknesses to the educational program, but nonetheless are unable to reach a settlement on all of the claims asserted by the parent. For this strategy to be effective, however, it is imperative the school district conduct an objective assessment of the hearing request and identify the claims where it is likely the parent will prevail. The school district should offer relief relating to those weaker claims. Thus, if the parent rejects the settlement and the hearing results in the relief anticipated by the district, the school district likely will be shielded (at least partially) from liability for the plaintiff’s legal fees.

Areas to Probe
Beyond an offer of settlement, the following are a few quick questions to ask when assessing a school district’s potential liability for attorneys’ fees after an impartial due process hearing:

• What was the parent’s primary objective in commencing the hearing? If the parent did not obtain any relief on the main issues that motivated him or her to commence the hearing, but instead received relief on only minor, secondary claims, the district can argue that the parent is not entitled to any fees or is only entitled to a reduced fee.

• Does the relief impose any affirmative obligations above and beyond the school district’s obligations under IDEA? If not, the district can argue the parent is not a prevailing party because he or she did not achieve a “material alteration in the relationship between the parties.”

• What is the rate charged? Is the time expended reasonable? A parent’s attorney may only charge a rate that is commensurate with his or her level of experience and expertise and in line with rates generally charged in the local community. It should be noted that the more experienced an attorney is, the less time it should take him or her to prosecute a hearing request.

A Lesser Fee
Using the above strategies as points for negotiation, I convinced the parent that a federal court was unlikely to award her the full $180,000 she sought. Because of their limited success at the hearing and in light of prior settlement offers from the school district, the parent accepted a fee amount that was approximately a third of her original demand.

As demonstrated above, these strategies should provide some comfort for a school district defending itself in an impartial due process hearing. Even if a school district is unable to prevail on every claim asserted by a parent, the district does have tactics at its disposal to limit the exposure to the parent’s attorneys’ fees.

Ryan Everhart is a senior associate specializing in special education law with Hodgson Russ, a law firm in Buffalo, N.Y. E-mail: reverhar@-hodgsonruss.com