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A father who is a lawyer and successfully represented his daughter in a dispute with a local public school district has lost his bid for attorney fees under the Individuals with Disabilities in Education Act (IDEA). The 2nd U.S. Circuit Court of Appeals, following the precedent of two other circuits, held for the first time that the purpose of awarding attorney fees is to enable plaintiffs to obtain competent counsel and that awarding a parent fees could discourage plaintiffs’ use of independent, objective lawyers. “The danger that a parent-attorney would lack sufficient emotional detachment to provide effective representation is undeniably present in disputes arising under IDEA,” Judge Wilfred Feinberg wrote for the unanimous, three-judge panel in S.N. v. Pittsford Central School District, 05-1505. Judge Barrington D. Parker and 7th Circuit Judge Richard D. Cudahy, sitting by designation, joined in the opinion. During the 1997-1998 school year, defendant Pittsford Central School District, located outside Rochester, N.Y., developed an individualized education program for plaintiff S.N., who suffered from “health and learning impairments,” according to the panel. The plan entitled S.N. to home-tutoring any time she was absent from school for more than three days. In 2002, the school district amended the plan, effectively providing her with home-tutoring only following absences of 10 days. Following hearings before the district’s Committee for Special Education and, subsequently, a state review officer, S.N.’s father, Rochester. N.Y., attorney Juan Nevarez, initiated a suit in Western District court, alleging violations of the IDEA. The parties then agreed to a settlement that reinstated the contested tutoring provision. In November 2004, Nevarez filed a motion seeking $21,330 in attorney fees. He informed the court that his customary hourly rate was $200 and estimated that he had spent 106.5 hours on the case. District Judge Charles J. Siragusa denied the motion, holding that IDEA’s attorney fee provisions “assume the existence of a paying relationship between a client and a retained attorney, and are intended to assist litigants, who could not otherwise afford to do so, to retain counsel.” Nevarez appealed, and last week the 2nd Circuit upheld the decision. Like prior circuits that have considered the issue, the 2nd Circuit cited the U.S. Supreme Court decision Kay v. Ehrler, 499 US 432, which held that an attorney representing himself was not entitled to fees under the Civil Rights Attorney’s Fees Awards Act. The purpose of the act, the Court held in Kay, was to “enable potential plaintiffs to obtain the assistance of competent counsel.” Awarding fees to pro se counsel, the Court added, would create a disincentive to hiring an attorney. The circuit applied the Supreme Court’s reasoning to the present case. “In order to best promote the effective litigation of a child’s meritorious claims under the IDEA, we hold that attorney-parents are not entitled to attorneys’ fees,” the panel concluded. Nevarez said in an interview that the decision rested on a faulty analogy and a misreading of the relevant statute. In Kaye, “that was an attorney representing himself,” Nevarez said. “The actual language” of the statute, he added, “does not exclude the situation that we had, the parent representing a child.” Brian Laudadio of Pittsford-based Harris Beach represented the defendant school district.

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