Since January, Washington-based firm James E. Brown & Associates has filed more than 450 lawsuits against the District of Columbia. The firm, which represents families of students with special needs, claims unpaid attorney fees to the tune of more than $6.5 million.
The firm is part of a group of local attorneys who specialize in taking the school system to task over how it serves special-needs students. The city has a history of trouble with its special-education services, giving rise to a robust bar.
Lawsuits over fees in these cases are nothing new — the city has butted heads with attorneys for years over how much it should pay to families who prevail in complaints against the school system. But this latest round of litigation in D.C. Superior Court and U.S. District Court for the District of Columbia comes at a moment of transition for both the attorneys who handle these cases and the school system.
The Brown firm, which takes cases on a contingency basis, laid off 21 of its 32 attorneys and support staff in May, ending its reign as a powerhouse of special-education cases in Washington. Firm-attorney Robert Jones said that, although the firm sued the city in the past over fees, “the scope of the problem is, even for us, new, in terms of how many outstanding invoices we have.”
At the same time, the city is aggressively pushing to end years of court oversight of its special-education system and prove it can manage on its own. Attorneys say that, although the school system has improved in some respects, it’s still not performing at the level it should. They warn that if lawyers can’t afford to take these cases, parents or guardians won’t have the time, money and expertise to bring them on their own.
“It’s not a secret that in civil rights practice, generally, if you can’t get a lawyer you can’t enforce your rights,” said Diana Savit of Bethesda, Md.’s Savit & Szymkowicz, who has specialized in special-education cases since 1994.
The stakes are high when it comes to special education. The city’s past failures generated class actions in the 1990s that led to court supervision. District of Columbia Attorney General Irvin Nathan has made ending those cases a priority, both as a matter of local autonomy and because they have cost the city millions. On top of that, the city recently has paid as much as $7.4 million annually in attorney fees to prevailing families in complaints against the school system.
The relationship between the city and attorneys who handle these cases historically has been rocky, but a number of attorneys say that it has steadily deteriorated in recent years. Some claim arbitrary cuts to their invoices and a lack of communication. Others say they don’t get any fees reimbursed and feel forced to take the city to court.
“Sometimes what they do is very reasonable, other times what they do is very random, in terms of the cuts they make and the items they decline to pay for…and unfortunately, that’s what leads to a lot of litigation,” said Elizabeth Jester, a solo practitioner.
A request for comment with the D.C. school system was referred to the city’s Office of the Attorney General. The office, through spokesman Ted Gest, declined a request to interview attorneys in that office or with the school system.
In court filings, the city has said that while it is willing to pay “reasonable” fees to prevailing families, it needs to protect city coffers against lawyers who overbill or fail to work within the city’s guidelines.
In the Brown firm cases, the city won the first round of litigation in one set of claims in Superior Court, with the court finding on July 11 that Brown could only ask for fees within the city’s guidelines. Those cases, which involve claims of less than $5,000, were sent to mediation. The city is preparing to move for dismissal of another set of claims for more than $5,000. The federal court cases are all pending.
A CONTROVERSIAL IDEA
Following the passage of what’s now known the Individuals with Disabilities Education Act (IDEA) in 1975, D.C. was hit with more special-education litigation than any other school district, according to Perry Zirkel, a professor at Lehigh University who studies special-education law. He said the District was also unusual in that families historically were more likely to prevail than the school district.
In cases where a parent or guardian prevailed before a hearing officer, they could recover attorney fees. In cases where families settled with the city before a formal determination, those agreements often included provisions for attorney fees. Lawyers would submit their invoices to the school system, where a city attorney reviewed the requests and decided how much to pay.
The bar that grew out of the IDEA was historically split into three categories: firms like James E. Brown, smaller firms and solo practitioners, and nonprofits such as the Children’s Law Center. Washington isn’t the only jurisdiction with attorneys who specialize in special-education cases, but Zirkel said that D.C. is unique in its size and activity.
Walter Smith Jr. of DC Appleseed, a nonprofit that has studied the city’s special-education services, said that although attorneys were blamed for the high number of complaints, the problem, at least in the past, lay mostly with the city. Some attorneys were “overreaching,” he said, but “if the city got its own act together with regard to how it processed these complaints, or, better yet, addressed earlier the needs of students with special needs, a lot of these hearing problems could be reduced.”
The lawyers bringing these cases were a source of some controversy for other reasons as well. In a report on attorney fees in special-education cases from 1999 to 2003, for instance, a city auditor found that some attorneys and firms were engaging in the “questionable business practice” of referring clients to services or private schools in which they had a financial stake.
The number of complaints filed with the school system has dropped in recent years. In fiscal year 2002, according to the auditor’s report, there were 3,044 complaints. For the 2010-2011 school year, there were 1,223 complaints filed.
James Sandman, former general counsel for the school system from late 2007 to early 2011, said he attributed the drop to former schools Chancellor Michelle Rhee and Deputy Chancellor Richard Nyankori, who “implemented systems to improve services for students and to address problems before they resulted in complaints.”
As far as fee cases, Sandman, now president of the Legal Services Corp., said he thought “it ran pretty smoothly. There were occasional bumps in the road, but the lawyer who ran it was very competent and diligent and when problems did arise, she tried to get on top of them quickly.” That lawyer, Quinne Harris-Lindsey, oversees special-education cases for the school system.
‘UNWARRANTED AND UNSUPPORTED’
From 1999 to 2009, with a break in 2002, Congress set limits on how much attorneys could recover in special-education cases. From 2003 to 2009, that limit was $4,000. The school system’s general counsel’s office also laid out what they would and wouldn’t pay, in terms of hourly rates and reimbursable expenses. It updated those guidelines for the first time since 2006 on June 1.
The amount the city paid in annual attorney fees varied while the fee cap was in place, from as low as $3.3 million in fiscal year 2008 to as high as $7.4 million in 2006 and 2009, according to data provided by the attorney general’s office. After the fee cap was lifted, the amount went down to $6.6 million in 2010 and $6.5 million in 2011.
Michael Eig of Michael J. Eig & Associates, who has handled special-education cases since the 1970s, said attorneys and the city began clashing over fees once reimbursement became an option in the 1980s. “They’ll be good for a period of time, a few years, and then all of a sudden they’ll stop paying for services and paying for fees,” he said.
Douglas Tyrka, a solo practitioner who has handled special-education cases since 2003, said that until around 2008, he found the city “reasonable” when it came to fees. After 2008, however, he said the city stopped settling on fees and, at least in his case, stopped paying invoices that he maintained were reasonable.
In a 2009 court filing, the city replied to complaints from the attorneys. The city argued that the delays cited by attorneys represented “a reasonable defense of the public fisc from unwarranted and unsupported claims for fees.”
Former D.C. Attorney General Peter Nickles, now a senior counsel to Covington & Burling, took an aggressive approach, suing several attorneys over what he said were “frivolous” cases. That effort generated a lot of public attention, but the city lost most of those cases in court. “I wasn’t going after [the attorneys], I was going after the abuse,” said Nickles, who served from 2008 to 2010. “There’s no way you can justify a city as small as District of Columbia having to shell out so much money for legal fees.”
The James E. Brown firm, which opened in 1997, was the largest firm specializing in special-education cases, employing about 35 attorneys and support staff at its peak, according to firm attorney Nicholas Ostrem. In 2009, the firm laid off 11 people — at the time it blamed the city for failing to pay fees — but Ostrem said they rehired later.
At its peak, the firm typically had 700 to 800 clients. After the layoffs this year, Ostrem said they’re down to between 300 to 400 clients “and we’re having a hard time managing even those.”
Tyrka said that with James E. Brown at reduced strength, he’s worried that some families won’t be able to find a lawyer who can take their case, especially since the firm represented low-income families on a contingency basis. “Some like to paint parent attorneys as leeches on children, distastefully profiting from the system,” he said in an e-mail. “That view ignores the fact that if we don’t watch [the school system], no one else will — they’re obviously not watching themselves very well.”
Contact Zoe Tillman at firstname.lastname@example.org.