shlep: the Self-Help Law ExPress

The SCOTUSBlog, which covers the U.S. Supreme Court very well, reported yesterday (Sept. 20, 2006) that the Justice Department has urged the high Court “to clarify when a non-lawyer parent of a disabled child may file a lawsuit, without a lawyer, to enforce the child’s rights under the Individuals with Disabilities Education Act (IDEA).”

The Court had asked for the Solicitor General’s opinion regarding the case of Winkelman, et al., v. Parma City School District (docket 05-983).  SG Paul D. Clement wants the Supreme Court to take the case and overturn the Sixth Circuit appellate court, which held last year that Ohioans Jeff and Sandee Winkelman had to hire a lawyer to bring an IDEA lawsuit on behlaf of their child.  Go to the SCOTUSBlog posting for more information on the case and links to many relevant pleadings. [Go to Nolo.com’s podcast “Understanding Special Education Laws,” by author Lawrence Siegel to learn about IDEA.]

Carolyn Elefant discusses the case today at Legal Blog Watch, pointing out that the American Bar Association has been silent so far on this issue.  After noting that many parents simply cannot afford to hire a lawyer in these education-disability cases, Carolyn opines:

“The ABA and bar associations should be supporting parents’ rights to represent their children, and if they won’t, then they ought to come up with a way that children can find pro bono or low-cost attorneys.” 

The Ohio State Bar Association and Cleveland Bar Association have decided to play mute so far on this issue.  However, Carolyn, Walter Olson, Prof. Larry Ribstein, and even ethicalEsq came down very hard on the Cleveland Bar in a very similar case earlier this year, when the Cleveland Bar Association brought charges of unauthorized practice of law against Brian and Susan Woods, after they successfully brought a case “pro se” on behalf of their child under IDEA.  

  After harsh public outcry and some suasion from the Ohio Supreme Court, the Cleveland Bar withdrew the UPL claim against the Woods, but the Bar President, T. Kelly Tompkin, nonetheless insisted that they had a perfectly “legitimate, technical basis” to bring the UPL charges, because only the actual party can represent himself or herself pro se, and Mr. Woods represented someone else in court — his son — without being a lawyer.  [see a New York Times article, May 6, 2006; and a Cleveland Plain Dealer article, May 5, 2006]   Walter Olson put it well:

“If you set out to devise a case that would bring unauthorized practice of law statutes into public disrepute, you could hardly have done better than the Cleveland bar, which is seeking to punish a nonlawyer for representing his own autistic son in IDEA (special-education) proceedings–even though the father and son prevailed in the proceedings, undercutting any consumer-protection line of argument.” 

Even minors who are mentally competent can’t bring a lawsuit on their own and can’t enter into contracts such as a legal retainer.  It is the parent who would hire a lawyer in an IDEA case to represent their child.  To say — on the basis of unlawful practice of law statutes — that the parents cannot instead choose to be their child’s representative in court does indeed make UPL laws and bar cartel/associations look very bad.  Lawyers who handle IDEA cases on behalf of children and parents often (and usually, rightly) paint themselves as being on the side of the angels.  I sure hope they are not the ones seeking UPL sanctions against parents or keeping their bar groups from standing up for the Winkelmans and other parents, when they need or want to prosecute an IDEA case without counsel.