3.2 Identifying the “Client”

Determining whether the student or the parent should be the client is one of the first decisions an attorney must make when engaging in special education representation.1  The parent or legal guardian is typically the client in a special education case because the parent is the educational rights holder until the student reaches the age of majority.2  After turning 18, the student becomes the educational rights holder unless the student has been found incompetent under state law.3  It is important to note that disability status alone does not affect the transfer of rights and that special education attorneys in particular should be aware of the ethical requirement to “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” when representing an individual with diminished capacity.4  Once educational rights transfer to the student, the parent may continue attending IEP meetings and being involved in educational decisions to the extent desired by the student. As the educational rights holder, however, the student becomes the person whose consent is needed for evaluations and sought for decisions related to the IEP. The student also becomes the complainant for any complaint, due process proceeding, or court action filed related to special education rights. In situations where the student is the educational rights holder but the parent is paying for the legal services, the attorney should keep in mind the ethical duty to ensure being compensated by a third-party does not cause “interference with the lawyer’s independence or professional judgment or with the client-lawyer relationship.”5

• 1For purposes of both this chapter and special education generally, “parent” is broadly defined to include biological parents, adoptive parents, foster parents, legal guardians, surrogate parents, and other individuals legally responsible for the student’s welfare and education. See 34 C.F.R. § 300.30; La. Bulletin 1706 § 905 (definition of Parent). 
• 2See 34 C.F.R. § 300.520; La. Bulletin 1706 § 520.
• 3See 34 C.F.R. § 300.520; La. Bulletin 1706 § 520.
• 4La. R. Prof’l Conduct 1.14(a).
• 5La. R. Prof’l Conduct 4.2.