COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Zale1 and the Springfield Public Schools
BSEA #09-2701
Ruling on Parent’s Motion for Protective Order
This matter comes before the Bureau on the request of the Parent for assistance in regulating the conduct of the attorneys for both the Parent and the School District. On February 19, 2009, the Parent submitted a Motion entitled “Mother’s Emergency Motion for Order to School District to Abide by Attorney Client Relationship and Request for Order Regarding Authorization for the Unrepresented Party.” In it counsel for the Parent asserted that he had been prevented from participating in school based meetings on behalf of and in the absence of the mother because the school failed to produce its own attorney for the meeting or, in the alternative, a written waiver of the school attorney’s presence. Counsel for the Parent contends that the Massachusetts Rules of Professional Conduct, in particular M.R.C.P.4.22 , which require that he abstain from unrepresented contact with parties he knows to be represented, apply to all contacts he may have with school personnel concerning a student about whom there is a reasonable prospect of future litigation. He argues that by refusing to produce a school attorney or written waiver of attorney presence for each meeting or conversation he may have with school personnel in his capacity as a lawyer for the Parent, he risks violating MRCP 4.2. To avoid engaging in conduct prohibited by MRCP 4.2, counsel for the Parent must then excuse himself from any meetings or discussions for which the school attorney is not present. He argues that this significantly interferes with his client’s right to have a representative of her choice at all school meetings, and with their attorney-client relationship. He seeks an Order from the Bureau directing the Springfield Public Schools to produce an attorney, or a written waiver of the attorney’s presence, for each contact that he may have with the school once he is authorized to represent a parent or student in any school related matter.
In response the School argues that the Parent has no absolute right to be represented by an attorney during all communications with a school outside of those identified as elements of the due process system set up in the IDEA. It further argues that to require the School to engage or produce an attorney for every and any school communication with a parent is not only unduly burdensome, but thwarts the intent of the IDEA to foster direct and open communication between parents and schools. Finally the school contends that a BSEA order mandating any action on the part of the school attorney beyond that explicitly set out in the IDEA or M.G.L.c.71B would impermissibly infringe upon its attorney client relationship.
A hearing on the Parent’s Motion was held on March 12, 2009. After careful consideration of the arguments of both parties, and of the relevant laws and practice rules, I find that the BSEA does not have jurisdiction to grant the relief here requested by the Parent. In essence the Parent is seeking to regulate the conduct of the School’s attorney. This is the province of the Board of Bar Overseers which oversees attorney conduct and provides assistance, when requested, with law practice management. Certainly, as the Parent’s lawyer points out, the potential for ethical consequences when participating in even routine meetings with individuals a lawyer may later confront in an adversarial context is real, but not uncommon.3 Lawyers have developed a variety of formal and informal measures to cope with this very dilemma. It is not up to the BSEA to direct which method(s) are appropriate in any given situation.
There is no language in the IDEA or in M.G.L.c. 71B establishing a parental right to have an attorney present during any parental contact with the school. Other parental rights are clearly stated.4 Without a showing that Springfield’s current practice of engaging its own attorney only for due process events associated with an ongoing administrative appeal is compromising this Parent’s or Student’s statutory entitlements, there is no basis under the IDEA for BSEA action.
ORDER
The Parent’s Motion for a BSEA Order regulating Attorney conduct fails to state a claim upon which relief can be granted by the BSEA, and is DENIED .
______________________ ________________________
Date: April 7, 2009
Lindsay Byrne
Hearing Officer
1
“Zale” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
Rule 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
Comment
[1] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communication with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. Counsel could also prepare and send written default notices and written demands required by such laws as Chapter 93A of the General Laws…
[3] This rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates. See the definition of “person” in Rule 9.1(h).
[4] In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. If an agent or employee or the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f).
[5] The prohibition on communications with a represented person only applies, however, in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has knowledge of the fact of the representation; but such knowledge may be inferred from the circumstances. See the definition of “knowledge” in Rule 9.1(f). Such an inference may arise in circumstances where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
[6] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer’s communications are subject to Rule 4.3.2009
[7] Nothing in this rule prohibits a lawyer from seeking and acting in accordance with a court order permitting communication with a person known to be represented by counsel.
3
See eg: Messing, Rudavsky & Weliky , P.C. v. President and Fellows of Harvard College , 436 Mass. 347, 764 N.E. 2 nd 825 (2002)
4
For example, the IDEA explicitly guarantees a parent’s right to examine school records pertaining to her child, to participate in meetings concerning the identification, evaluation and educational placement of her child, to obtain an independent evaluation of the child at public expense, and to request an impartial due process hearing. 20 U.S.C. 1415. The IDEA further gives the parent the right to communicate with the school in a language that is “understandable” to her. 34 CRF 300.322; 34 C.F.R. 503; 34 C.F.R. 504