March 17, 2009

Lawyer Update - None for Anybody

March starts the frantic, desperate calls from parents looking for lawyers and advocates. Children have been reevaluated and parents need someone to explain the reports. Kids are miserable in their current classes. Or their personalities have begun to change and they are more interested in a new group of friends with different values and standards. Parents have lost jobs right and left, and can’t afford anything- no tutoring, no therapy, sometimes gas to take the family on an outing- when they have a car. Education takes a back seat when you’ve lost your house and there is no work. This does not refer to everybody. But the amount of and kind of calls and appointments here are more than I have ever seen before, a tsunami of need against the overpowering force of states closing ranks against the disabled because they are too expensive, too messy, and too time-consuming to handle. I recently got a link to a New Jersey posting to its directors of special education. Among the astonishing items was how to use the regular classroom to deliver services. Place first- then figure out what might be added for the kid. It is New Jersey’s unabashed policy declaration against every basic right guaranteed in IDEA. Cloaked in the garbled language of Inclusion, the message is unmistakable. It’s my way or the highway, Charlie. Good luck on getting a lawyer. For that is the real message. States know, as never before, that there is no competent and affordable person left to fight for parents. Even one such person would change the dynamic. I used to be that one person long ago. But now there is nobody left. I checked the blog of one of the most respected law firms in New Jersey, with a particularly well known, over-priced attorney who did special education cases. Her last posting was in 2007.

The quality and characteristics of lawyers is being reassessed by Professors Sheldon Zedeck and Marjorie Shultz at the University of California, Berkeley. They have created a test they think is better at predicting success of a lawyer rather than the Law School Admission Test, LSAT. Critics say the LSAT keeps out black and Hispanic students and does not evaluate how good a lawyer will be. Zedeck and Shultz interviewed a wide range of people, including judges, asking, “If you were looking for a lawyer for an important matter for yourself, what qualities would you most look for?” Of the 26 discovered “effectiveness factors” were the ability to write, manage stress, listen, research the law and solve problems. It is generally agreed that broader factors than currently exist, must be added when selecting law school applicants (Study Offers a New test of Potential Lawyers, Jonathan Glater, The New York Times, 3/11/09).

From the lawyer’s perspective, things also look pretty grim. Forget special education for a minute. Due to the faltering economy, American firms are increasingly sending lawyers to Asia and the Middle East because there is more money to be made there. A Cleveland firm went from 6 foreign offices to 18. A New York firm closed offices in Connecticut, Florida, North Carolina and Texas, opening offices in Doha and Abu Dhabi, whose American lawyer population has increased 144%. Dubai has a backlog of American applicants, America’s economic crisis seen as an opportunity to open and expand foreign legal markets. (Lawyers Wanted: Abroad, That Is, The New York Times, 11/23/08.) Like everything else, the firm’s only thought is about making money and increasing power. So the effectiveness factors created by Zedeck and Shultz won’t make a damn bit of difference if there is no money to pay new lawyers. And there is never enough money to pay the nonexistent lawyer specializing in special education. It seems these attorneys would rather organize and stay in their private clubs, lobby, and submit amicus briefs on U.S. Supreme Court cases, than to work with poor families who cannot pay them. Abu Dhabi, here we come! In New Jersey, the law business has gotten so bad that a 2006 N.J. Supreme Court decision that prevented attorneys from advertising in publications may be reviewed. A 300 page report issued in July 2008 by retired Appellate Division Judge Robert Fall recommended relaxation of the advertising ban. (Have you ever seen what happens when a New Jersey lawyer relaxes?) He said that lawyers should have the ability to advertise, especially if they have been named to the “super” list of attorneys and points out that New York permits such advertising. The worry was expressed that if somebody advertised themselves as a super lawyer, the client might have unrealistic expectations. (Giving super lawyers a break, James Quirk, The Record, 7/15/08) Makes you get sick to your stomach, doesn’t it?

The analog for special education lawyer need has always been immigrants fighting deportation. The Second Circuit Court of Appeals judge, Robert A. Katzmann, has taken a strong stand on this issue. Hundreds of New York’s immigrant poor are locked up with no access to a lawyer as they fight deportation. He believes that the city’s legal profession should do more volunteer work in the immigration court system, where no defendant has the right to a court-appointed lawyer, and some of the most vulnerable get incompetent operators who bungle cases wholesale (In City of Lawyers, Many Immigrants Fighting Deportation Go It Alone, Nina Bernstein, The New York Times, 3/13/09). Sound familiar? Parents fight the deportation of expulsion, loss of special education eligibility, improper designation of eligibility, denial of services. They take a mortgage on the house, or sell grandpa’s gold ring to pay an attorney. There are some good ones that fly by periodically. Then they burn out as their space craft makes reentry into the realities of litigation. They disappear. What is left are either the awful ones, not entirely based on hourly rate, or those who don’t do much special education work and bungle the entire case, or the super lawyers who are in the super lawyers club. They meet and brag about their latest case and tell each other how wonderful they are. They look good and smell good and sound very impressive. Meantime, they are oblivious to the pain and agony of those left in special education jail. I hear that this little clique, with chapters in all 50 states, may be joining their compatriots in Asia and the Middle East. With all of those wives and kids of Osama Bin Laden, at least a few must have disabilities. Let’s climb those mountains and find those caves! Yet another market to be conquered!