Attorney Fees: Recovering Costs and Fees from the School District

In my special education advocacy and law practice, I find that many parents misunderstand attorney's fees and think lawyers are a luxury that only the rich can afford. However, special education attorney services can be affordable for families of all income levels. How? Special education law recognizes that the cost of attorney fees may limit a parent from pursuing their child’s rights under the Individuals with Disabilities Act (“IDEA”). Therefore, the law provides for the parent’s recovery of attorney fees if the parent prevails in the dispute.

The “Attorney Fee Recovery” provision of the IDEA allows you to recover your reasonable attorney fees from the school district if you prevail at due process. The purpose of this provision is to provide parents with access to skilled representation regardless of their wealth. The provision only applies to attorneys. If you use an advocate (non-attorney), the advocate’s fees are not recoverable under the law, even if you win.

Because of the "Attorney Fee Recovery" provision, special education attorneys will often work with clients on limited incomes. An attorney may ask for a small advance, called a retainer. The remaining attorney's fees may be contingent on the outcome of the case. The attorney is taking a risk based on their assessment and confidence that the issues can be resolved in your favor so that fees are recoverable from the school district. In this situation, a parent’s exposure to attorney’s fees is minimized and it shows you’ve hired an attorney who believes in your child’s case.

Before concluding you are unable to afford an attorney, seek out a free evaluation. This is an opportunity for you to bring your child’s records to an attorney for review, discuss the issues you’re having, and ask questions. At the very least, you will get questions answered and have a better understanding of how to help improve your child's education.