HEARING BEFORE THE
AMERICAN BAR ASSOCIATION
COMMISSION ON MULTIJURISDICTIONAL PRACTICE
SAN DIEGO, CALIFORNIA
FEBRUARY 18, 2001
TESTIMONY OF PHILIP MATTHEW STINSON, SR., ESQ.
Mr. Chairman, distinguished members of the Commission, good morning. I am a principal of Stinson Law Associates, P.C., a Philadelphia-based law firm, as well as president and general counsel of the Center for Education Rights, a non-profit public interest advocacy organization with offices in Chester, Pennsylvania, and San Diego, California, and executive director of the Chester Special Education Law Clinic, which provides legal representation to low income parents of children with special needs in the Chester Upland School District in Chester, Pennsylvania.. I also serve as editor of SpecialEdLaw.net, a multidisciplinary resource for parents of children with special needs, attorneys, psychologists, physicians, teachers, school administrators, and others seeking information relating to special education law.
Stinson Law Associates, P.C. maintains law offices in Pennsylvania and Delaware, and we are often asked to represent clients in states across the country. My practice is limited to representing parents of children with special needs, mostly in legal disputes with state educational agencies and local educational agencies pursuant to several federal statutes: the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the Americans with Disabilities Act, 42 U.S.C. §12101, et seq.
Under the IDEA, parents may bring an action against a public educational agency when their child has been denied a free appropriate public education. This process starts with exhaustion of administrative remedies, through special education due process hearings before an impartial hearing officer either at the local level, or state level, depending on whether the state has elected a one-tier or two-tier administrative hearing system under the IDEA. Every week I hear from parents of children with special needs who have real disputes with public educational agencies regarding the provision of a free appropriate public education for their child, and are unable to locate an attorney to represent them in a special education due process hearing.
In one recent case, In the Matter of Arons, 756 A.2d 867 (Del. 2000), a non-attorney advocate argued before the Delaware Supreme Court that they should be able to represent parents of children with special needs in administrative due process hearings because parents were unable to secure representation by any Delaware lawyer familiar with special education litigation, and because the IDEA allows non-attorneys with a knowledge of special education to advise parents at due process hearings. In Delaware, pro haec representation is allowed in court proceedings as well as state administrative hearings, but only under limited circumstances with joint representation by local in-state counsel. Delaware does not have reciprocal Bar admission with any other state; every member of the Delaware Bar sat for and passed the full Delaware Bar Examination. Until my law firm established an office in Wilmington in 1999, there were no attorneys in private practice within Delaware who regularly represent parents in special education disputes with local school districts. We, too, have had difficulty in finding a Delaware lawyer with an interest in special education law, and have been unable to hire an associate that is a member of the Delaware Bar.
Currently, there are less than two hundred (200) attorneys nationwide who regularly represent parents in special education due process hearings, and only a few dozen attorneys in the United States who have extensive appellate litigation experience representing parents in special education matters. In twelve of the fifty states, there are no attorneys who regularly represent parents in special education legal matters.
On at least three occasions in the past two (2) years, federal courts have addressed the issue of whether out-of-state attorneys representing parents in state-level or local-level special education due process hearings are engaged in the unauthorized practice of law.
In Z.A. v. Sun Bruno Park School District, 165 F.3d 1273 (9 th Cir. 1999) the United States Court of Appeals for the Ninth Circuit held that California law precluded an award of attorney's fees to a parent in a special education due process hearing who was represented by an out-of-state attorney in the administrative proceeding. In this instance, the mother of a child with special needs retained the services of the Community Alliance for Special Education, a California non-profit corporation that advocates for parents of disabled children. The attorney, Paul Foreman, Esq., was admitted to the United States District Court for the Northern District of California, but was not, at that time, admitted to the California State Bar.
The United States District Court for the Northern District of Indiana likewise concluded that state law prohibited a parent who prevailed at a special education due process hearing from recovering attorney's fees from a school district when the parent's attorney, Thomas Kennedy, III, Esq., was licensed in Illinois and Missouri, but not in Indiana. Nathan C. v. School City of Hobart, 30 IDELR 396 (N.D. In. 1999).
More recently, the United States District Court for New Hampshire addressed the issue of representation of a parent at a special education due process hearing by an out-of-state attorney. Amy M. v. Timberlake Regional School District, 2000 WL 1513769 (D.N.H. 2000). In this case, Amy's mother was represented by Mary Ann Chase, Esq., a Massachusetts attorney. The Court noted that the IDEA implementing regulations require that parent's counsel be an attorney, but that nothing in the IDEA or its implementing regulations require that attorney to be a member of the Bar of the state in which the legal services are rendered. Accordingly, the Court concluded that the IDEA does not bar a court from awarding attorney's fees to a plaintiff who has chosen to be represented by an attorney from another state. The Court distinguished the case from the Ninth Circuit's decision in Z.A. v. San Bruno Park School District, because - unlike California - New Hampshire has no statute prohibiting a person from receiving compensation for services as an attorney unless he or she was a member of the state Bar at the time the services were rendered. Interestingly, New Hampshire requires all applicants to the Bar to take the full New Hampshire Bar Examination, and also requires that all applicants to the New Hampshire Bar be residents of the State of New Hampshire. See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). As an aside, currently only three attorneys in private practice - Scott Johnson, Esq., Peter S. Smith, Esq., and Michael Chamberlain, Esq. - regularly represent parents in special education due process hearings in New Hampshire.
In each of these cases, the out-of-state attorney was permitted to represent the parent at the local-level or state-level administrative hearings. It was not until the parents' counsel prevailed on the merits by establishing that each child in question had been denied the provision of a free appropriate public education that the issue of licensure was an issue. Frankly, out-of-state Bar membership only became an issue when, in each instance, counsel sought payment of the prevailing parents' attorney's fees, as permitted under the fee-shifting provision of the Individuals with Disabilities Education Act, 20 U.S.C. §1415(i).
The proliferation of internet-based resources has added to new issues relating to multijurisdictional practice. My law firm maintains a web-site, SpecialEdLaw.net, as a joint venture with the Center for Education Rights, a non-profit advocacy organization. In the past year, visitors to the site included people from all fifty states, as well as the District of Columbia. Our opt-in subscription-based ListServ e-Newsletter mailing list includes people from 46 states and the District of Columbia, all of whom receive a weekly Newsletter via e-mail.
Our web traffic statistics are quite telling as they relate to multijurisdictional law practice issues. During the month of January, 2001, SpecialEdLaw.net experienced:
9, 384 page view impressions;
5,316 visitor sessions; and,
2,618 unique visitors, of which, 1,951 visited once, and 667 (or fifteen percent of the visitors) visited more than once
Many of the visitors to SpecialEdLaw.net downloaded resource materials in pdf format from our on-line resource library. During the month of January, 2001, visitors to SpecialEdLaw.net downloaded a variety of statutes and regulations that are often difficult for non-attorneys to locate, including:
363 copies of a federal statute, the Individuals with Disabilities Education Act, 20 U.S.C. §1401, et seq.;
340 copies of the federal regulations implementing the IDEA for school-aged special education children, 34 C.F.R. Part 300;
328 copies of an edited version of the IDEA just including the provisions relating to school discipline procedures for special education students;
268 copies of the federal statute, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794;
195 copies of the federal regulations implementing Section 504, 34 C.F.R. Part 104; and,
98 copies of the federal statute, the Family Educational Records Privacy Act ("FERPA"), 20 U.S.C. §1232g
Visitors to SpecialEdLaw.net also downloaded copies of federal court decisions, primarily landmark Special Education law decisions of the U.S. Supreme Court and the Courts of Appeals, 593 times during the month of January.
While our web-site specifically deals with special education laws within the United States, we do routinely have visitors to SpecialEdLaw.net from other countries. In January, for example, visitors accessed the web-site from Canada, Great Britain, Israel, Japan, Switzerland, Malaysia, Austria, Russia, India, New Zealand, France and Singapore.
It is difficult to track the location of visitors to the site by state within the United States, because our software can quite often only track the location of the visitor's internet service provider. At first glance, it would appear that most of our visitors are from the Commonwealth of Virginia. That is inaccurate, however. It is simply a reminder that roughly 12% of the visitors to SpecialEdLaw.net each month access the internet through America OnLine, which is located in Reston, Virginia. We do know that during the month of January, visitors accessed our site through internet service providers located in twenty states. Those states, in order of frequency, were: Virginia, Pennsylvania, California, Connecticut, New Jersey, Georgia, Ohio, Maryland, New Hampshire, Massachusetts, Illinois, Alabama, New York, North Carolina, Washington, Nebraska, Wisconsin, Delaware, Missouri, and Florida.
Each month, between one and three percent of our visitors are accessing the site from U.S. military computers. Most of these are parents of military dependent children with special needs at military bases, including children with special needs who attend special education programs at Department of Defense schools on military bases overseas. This might explain the high volume of traffic from other countries. We also receive frequent e-mail inquires from JAG attorneys, most often on U.S. Navy bases, who are making inquiries on behalf of enlisted personnel who have children with special needs attending off-base public schools. Many of these visitors to our site are isolated from traditional sources of information, and have come to rely on the internet to provide resources and the delivery of legal services.
State government agencies frequently access our site. During January, employees of the state educational agencies in Kentucky, California, and Delaware were among the most frequent visitors to the site. Other organizations account for a great deal of the traffic to our site. Employees of West Publishing frequent the site, as well as graduate students at Johns Hopkins University. Other web-sites across the country refer many visitors to SpecialEdLaw.net. Frequent referring sites include FindLaw ( http://www.findlaw.com ), the National Down Syndrome Society ( http://www.ndss.org) , Internet Resources for Special Children ( http://www.irsc.org ), the National Association of Protection and Advocacy Systems ( http://www.protectionandadvocacy.com ), the Association of Texas Professional Educators ( http://www.atpe.org) , Wrightslaw ( www.wrightslaw.com ) the American Bar Association's Juvenile Justice Center, and the National Criminal Justice Reference Service.
One of the services that we provide through SpecialEdLaw.net is a fee-based advocacy service. Through this service, we provide responses to inquiries relating to federal special education statutes and regulations. We do not provide state-specific information, and we require that our clients acknowledge that the service does not constitute the creation of an attorney-client relationship. Yet, we are concerned that the information provided to our clients could be construed by state regulators as the unauthorized practice of law.
As the practice has matured and as our reputation has grown with the success of SpecialEdLaw.net, our firm is asked to represent clients across the country in administrative hearings before local educational agencies -- school districts -- and state educational agencies on issues relating solely to federal law. We are also retained on a regular basis to provide appellate representation in federal courts across the country on issues relating to federal special education law. Although the statutes that we deal with are federal civil rights statutes, most states have state-specific educational regulations implementing the IDEA supplemental federal regulations. Most often administrative time-lines and jurisdictional statutes of limitations are determined by state-specific law, whereas the substantive body of law is at the federal level.
In addition to our administrative, trial, and appellate litigation practice, we often conduct workshops and provide in-service training and continuing education seminars throughout the country. In the past few months, I have conducted continuing legal education seminars in Pennsylvania, Delaware, Wyoming, Arizona, California, and Washington. Each of these opportunities - which are marketed through SpecialEdLaw.net - include the potential for questions regarding the nuance of state-specific regulations, as well as the potential for client development.
I hope that my remarks are helpful to the Commission by offering my experiences to demonstrate how the practice of law is changing rapidly as a result of internet-based communications. The boundaries of state lines don't seem to correlate to the de facto practices that are developing as a result of the world wide web. I urge the Commission to endorse a plan of action as follows:
1. Encourage the states to develop formal procedures for increased opportunities of pro haec vice representation by out-of-state attorneys in court litigation, as well as in administrative hearings at the state and local level;
2. Encourage the proliferation of full reciprocity between the states in Bar admission criteria;
3. Encourage the states to develop reciprocity for Bar disciplinary proceedings for attorneys engaging in pro haec representation; and,
4. Promote the development of Model Rules of Professional Conduct relating to Internet-based activities and multijurisdictional representation by attorneys.
MARTINDALE-HUBBELL LISTING FOR PHIL STINSON:
Philip Matthew Stinson, Sr. Position: Member. Born Phillipsburg, New Jersey, December 7, 1964; admitted to bar,1993, Pennsylvania; 1994, U.S District Court, Eastern District of Pennsylvania, U.S. District Court, District of Maryland and U.S. District Court, District of Arizona; 1995, U.S. Court of Appeals, Third and Fourth Circuits; 1999, U.S. District Court, Middle and Western Districts of Pennsylvania. Education: George Mason University (B.S., 1986); District of Columbia School of Law (J.D., 1992). Author: Congressional Accountability Act of 1995, 2 U.S.C. 1301, et seq., Public Law No. 104-1 (1992 Draft Bill). Articles Editor, District of Columbia Law Review, Symposium Issue: "The War on Poverty: New Perspectives," 1992. Regional Semi-Finalist, ATLA National Student Trial Advocacy Competition, 1991. Editor-in-Chief, The Side-Bar, District of Columbia School of Law, 1989-1991. President, Federalist Society, District of Columbia School of Law Chapter, 1990-1992. New Hampshire State Police Academy, Graduate, 1986. Police Officer, Dover, New Hampshire, 1986-1988. Juvenile Detention/Probation Counselor, Juvenile & Domestic Relations District Court, Fairfax County, Virginia, 1988-1991. Donner/JM Fellow, Center for Individual Rights (CIR), Washington, D.C., 1991-1992. Associate, Bochetto & Lentz, P.C., Philadelphia, Pennsylvania, 1993-1995. Director, Business Affairs/Associate General Counsel, Ruffhouse Records/Sony Music, 1995-1996. Associate, O'Brien & O'Brien Associates, P.C., Philadelphia, Pennsylvania, 1996-1998. Executive Director, Chester Special Education Law Clinic, 1999-present. President & General Counsel, Center for Education Rights, 2000-present. Faculty, Center for International Legal Studies, Kitzbühel, Austria, 2001. Lecturer, Psychology Department, Bryn Mawr College, Spring, 2001. Featured in "A Washington Tragedy: How the Death of Deputy White House Counsel Vincent Foster Ignited a Political Firestorm," Moldea (Regnery, 1998). Network Television Appearances: CBS News "60 Minutes," October 1995). Member: Philadelphia, Pennsylvania and American Bar Associations; The Association of Trial Lawyers of America. PRACTICE AREAS: Juvenile Law; Education Law; Special Education; Civil Rights Section 1983; Americans with Disabilities Act. Email: [email protected]