January 17, 2010

The Nonlawyer in 2010

We are in a new decade. And with this cross over into another multiple of 10, it looks as though some are thinking anew about the necessity for options to lawyers in many different fields. In the same way we are turning out teachers who can’t teach and bankers who defraud, we have an epidemic of lawyers who can’t lawyer. They are too expensive generally, and with those involved with the work I do, gutless. Somehow they have been drained of blood and compassion, and refuse to represent those who need them and deserve them. Their yellow streak is more than a warning light, turning to white on the back of the little skunk who lifts its tail and then scurries away in the wake of a mighty stench.

On January 2, 2010, The New York Times published an editorial titled, “A Nation of Do-It-Yourself Lawyers” (John Broderick, chief justice of New Hampshire & Ronald George, chief justice of California).

An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own- pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter.

Greater numbers of pro se litigants are now before judges than ever before because of the economy. Broderick and George agree that an overburdened justice system serves nobody well. One proposed solution they discuss involved the “unbundling” of legal services, allowing lawyers to take only a part of a case, or “limited scope representation.” Traditionally, lawyers have been required to take all of the case. But in the 41 states that permit unbundling, people can hire lawyers to help them fill out forms, and coach them on how to appear in court for hearings. Some lawyers say that this undermines their profession, and are concerned that the court system will become so user friendly that there will be no need for lawyers. The two Chief Justices who wrote the editorial support limited scope representation, and ask for other innovative approaches. Their closing sentence reads “If we are to maintain public trust and confidence in the courts, we must keep faith with our founding principles and our core belief in equal justice under the law.” I think this sounds like where I came into special education in 1977. And of the many areas of civil law that needs expert representation, special education may be the most complex. The problem is- there is almost nobody there and unbundling is an unknown concept.

Those of us who live and work in special education every day watch the legal system, and see its blindness to the need for an option to lawyer representation and sources for accurate legal advice. In a recent case before the U.S. Supreme Court, Milavetz, Gallop & Milavetz v. United States, No. 08-1119, a Minnesota law firm argued that the First Amendment was not meant to include lawyers (and all these years I thought it was the 14th Amendment that lawyers refused to abide by). At issue is the advice bankruptcy lawyers should give their clients. The argument on behalf of the United States wanted to limit advice, saying the law should be read narrowly, lawyers telling clients not to abuse bankruptcy laws by charging vacations or concert tickets, and then shed the debt by declaring bankruptcy. The law firm said that it wanted the right to give “unfettered” advice. I think that means the United States’ position is the correct one (Federal Law Limiting Legal Advice Draws Particular Interest at the Supreme Court, Adam Liptak, The New York Times, 12/1/09).

There has never been an argument, such as heard in Milavetz, on similar issues found in special education. There, lawyers give advice frequently on how to milk the school system, recommending unethical practices to parents from back dating letters to outright lying. The only representation in special education that has ever received scrutiny is nonlawyer representation. The obscene way that the Supremes handled, or refuse to handle, the representational issue in special education reflects its patronage of lawyers and its refusal to examine the issues raised by the two chief justices who wrote the recent New York Times editorial. Will 2010 finally be the year that the inability of special education parents to afford an attorney will be researched and publicly discussed? I know what will be found and so does everyone else. There is no free or low cost legal representation anywhere. The only answer to this problem is to unbundle the problems involved with special education cases. Let nonlawyers take part of the case, and lawyers another. Put them on an even playing field so one can learn from the other.

Now, however, anyone, or anything, that threatens the monopoly of lawyers in the courts will be sought out and destroyed. I think I am the last vestige of a system that worked, that won cases for parents, and that, in the end, was too much of a threat to lawyers because they could not win cases against an educator. Even worse, when a State or state agency is corrupt and refuses to abide b y the laws of special education, there is no one there to fight the corruption and or to take on the system. We are past the time that lawyers will sue state governments on behalf of children. There is no sound bite in it. It’s tough to get a good picture. It won’t look good on You-Tube. And the public only understands the words “money” and “autism” in our field. Even Massachusetts is fearful that the seat of the godfather of special education, Ted Kennedy, will go to a Republican. The only people who care about special education are the families of disabled children and the professionals who serve them. When it comes to political clout, we are totally alone.

I am so lucky to have worked in the system before it broke. I saw what it was intended to be, saw it at its worst and its best. But there was always a chance. You did your best, took the judge that was assigned to you, and did your case. But no more. Everyone who works with parents says that they must take settlements now because to litigate the case, even when the settlement offer is lousy, will infuriate the judge. Schools are suing parents’ lawyers for frivolous litigation in growing numbers when they litigate the case to decision or fail to accept what is construed as a legitimate settlement offer. Because the balance of power is nonexistent, almost any offer is considered to be “legitimate”. Lawyers with national reputations in special education continue to rake in money for parent training when they know it is all a farce. Non e of them will take on an actual case. Their crippling inertia, doublespeak, and avoidance says as much about the problem as anything I can say here.

Science finds circular objects throughout the universe, and points out the shape of planets, stars, flowers, boulders, and our eyes. Literature has a phrase…”So we have come full circle”. A sphere is tough, stronger than virtually any other shape. What about human events and time? They are written in diaries inside trees as we count their rings. They are written in epochs as we read about how one civilization dies and another one is born. The notion of lawyers and of representation goes back many centuries, ebbing and flowing with certain rules and philosophies. What we are looking at now is the slow evolution of a new way of doing things, brought on by too many people, with too many problems, and too few resources functioning within a government without checks or balances. My hope is that the curve of time and space keeps me here just long enough to go back to Delaware and do one more hearing. I want to close their initial circle against nonlawyers. That rotten state! And this tough old lady, round as a rock. We deserve each other. Happy New Year!