3.3 Retainer Agreements

A client retainer agreement should make it clear whether the parent or the child is the client for purposes of the representation.1

Educational advocacy engaged in as collateral representation for a child client likely requires special language in the retainer agreement to address potential conflicts of interest that could arise from dual representation of the parent as the client in the educational matter. Court-appointed counsel in a delinquency proceeding is an expressed-interest representative of the youth, to whom the attorney owes all the ethical duties attendant to an attorney-client relationship. If the same attorney also represents the parent in a special education matter, then a conflict could arise if the goals of representation of the parent and the student come to be at odds. For example, a parent’s goal of having the child found eligible for special education or having the child placed in a certain type of self-contained classroom may conflict with the expressed interest of the child who wants to avoid being labeled as a student with a disability or to remain with friends in a regular education setting. Advocates facing this situation typically resolve the dilemma by including language in the client retainer agreement that identifies the potential for conflict and permits the attorney to withdraw if an irreconcilable conflict arises related to a goal of representation for the educational advocacy.2  In most instances, providing effective counsel and advice to the parent and student can resolve disagreements over the goals of representation without the need to withdraw.

Prior to engaging in educational advocacy, an attorney must consider the scope of representation that will be provided to the client. Educational advocacy can quickly expand to matters beyond the discrete issues first brought to an attorney’s attention, and many issues may persist over several school years without ever being fully resolved. With this in mind, an attorney should establish a scope of representation that provides sufficient flexibility to address issues as they arise while not committing the attorney to perpetual representation on any and all aspects of a student’s education. Accordingly, it may be advisable to draft the retainer agreement to limit the scope of representation to a particular length of time, to a specific issue or set of issues, or to a certain level of advocacy. For example, an attorney may choose to limit the initial retainer to advocacy at IEP meetings and other school-level informal advocacy during the current school year and require a separate retainer if the advocacy reaches an impasse and needs to progress to representation in one of the formal dispute resolution mechanisms available through the special education system.3

Attorneys engaging in special education advocacy involving formal dispute resolution through a due process hearing should also consider adding language specific to the award of attorneys’ fees to the retainer agreement. The IDEA grants courts the authority to award reasonable attorneys’ fees to a parent of a student with a disability if the parent is the prevailing party in a due process hearing.4  As a result, attorneys’ fees are also commonly included as one of the terms in settlement agreements negotiated to resolve a due process proceeding. Retainer agreement language establishing authority for the attorney to seek and collect attorneys’ fees directly from the opposing party can help avoid any misunderstandings or conflict with regard to these fees later on, particularly for attorneys who are otherwise providing pro bono representation.5

• 1See Section 3.2 on this distinction.
• 2Sample retainer agreement language is provided in Section 9.
• 3Id.
• 4 34 C.F.R. § 300.517; La. Bulletin 1706 § 517.
• 5Sample retainer agreement language is provided in Section 9.