can a parent be the “self” in “pro se”?

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The SCOTUSBlog, which covers the U.S. Supreme Court very well, reported yesterday (Sept. 20, 2006) that the Justice Department has urged the high Court “to clarify when a non-lawyer parent of a disabled child may file a lawsuit, without a lawyer, to enforce the child’s rights under the Individuals with Disabilities Education Act (IDEA).”

The Court had asked for the Solicitor General’s opinion regarding the case of Winkelman, et al., v. Parma City School District (docket 05-983).  SG Paul D. Clement wants the Supreme Court to take the case and overturn the Sixth Circuit appellate court, which held last year that Ohioans Jeff and Sandee Winkelman had to hire a lawyer to bring an IDEA lawsuit on behlaf of their child.  Go to the SCOTUSBlog posting for more information on the case and links to many relevant pleadings. [Go to Nolo.com‘s podcast “Understanding Special Education Laws,” by author Lawrence Siegel to learn about IDEA.]

Carolyn Elefant discusses the case today at Legal Blog Watch, pointing out that the American Bar Association has been silent so far on this issue.  After noting that many parents simply cannot afford to hire a lawyer in these education-disability cases, Carolyn opines:

“The ABA and bar associations should be supporting parents’ rights to represent their children, and if they won’t, then they ought to come up with a way that children can find pro bono or low-cost attorneys.” 

The Ohio State Bar Association and Cleveland Bar Association have decided to play mute so far on this issue.  However, Carolyn, Walter Olson, Prof. Larry Ribstein, and even ethicalEsq came down very hard on the Cleveland Bar in a very similar case earlier this year, when the Cleveland Bar Association brought charges of unauthorized practice of law against Brian and Susan Woods, after they successfully brought a case “pro se” on behalf of their child under IDEA.  

seesaw  After harsh public outcry and some suasion from the Ohio Supreme Court, the Cleveland Bar withdrew the UPL claim against the Woods, but the Bar President, T. Kelly Tompkin, nonetheless insisted that they had a perfectly “legitimate, technical basis” to bring the UPL charges, because only the actual party can represent himself or herself pro se, and Mr. Woods represented someone else in court — his son — without being a lawyer.  [see a New York Times article, May 6, 2006; and a Cleveland Plain Dealer article, May 5, 2006]   Walter Olson put it well:

“If you set out to devise a case that would bring unauthorized practice of law statutes into public disrepute, you could hardly have done better than the Cleveland bar, which is seeking to punish a nonlawyer for representing his own autistic son in IDEA (special-education) proceedings–even though the father and son prevailed in the proceedings, undercutting any consumer-protection line of argument.” 

Even minors who are mentally competent can’t bring a lawsuit on their own and can’t enter into contracts such as a legal retainer.  It is the parent who would hire a lawyer in an IDEA case to represent their child.  To say — on the basis of unlawful practice of law statutes — that the parents cannot instead choose to be their child’s representative in court does indeed make UPL laws and bar cartel/associations look very bad.  Lawyers who handle IDEA cases on behalf of children and parents often (and usually, rightly) paint themselves as being on the side of the angels.  I sure hope they are not the ones seeking UPL sanctions against parents or keeping their bar groups from standing up for the Winkelmans and other parents, when they need or want to prosecute an IDEA case without counsel. 

4 Comments

  1. Mary Anne Simpson

    September 26, 2006 @ 11:29 am

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    It is not just the Cleveland Bar. It is the current protectionism with the some small bars. Please note the current case of the Commission on Practice versus Dan Shea a former Montana Supreme Court Justice. He is accused of some ten years ago helping some discharged employees of Healthy Mothers, Healthy Babies draft a wrongful discharge case. As a former attorney I never speak to anyone about the law because I received in the mail a copy of the statute regarding the criminal law charge of practicing law without a license. Who ever sent it to me, thanks. The Good Samaritan lawyer ends up having to pay for a defense. In the meantime people more and more are going pro se because they cannot afford to get a lawyer. As the bar becomes more protectionist the need for the Supreme Court to define representation becomes more apparant. The absurd rub is that if the disabled child could mount his or her own defense she would definitionally not be disabled. The court system is no place for a majority of people to try their talents unassisted.
    Enjoy this blog–thanks

  2. Patent Baristas

    October 1, 2006 @ 11:18 pm

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    Blawg Review #77…

    Welcome to the Autumnal Edition of Blawg Review, hosted this week by the Patent Baristas. We’re always glad to have people over to visit so grab a piping hot spiced latte and we’ll see what’s been going on around the……

  3. shlep: the Self-Help Law ExPress » Blog Archive » will Winkelman harm children?

    November 7, 2006 @ 5:33 pm

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    […] david giacalone – November 7, 2006 @ 5:33 pm · News Items An article in the newest issue of Education Week discusses the case of Winkelman v. Parma City School Distirct, which is pending before the U.S. Supreme Court. 

  4. shlep: the Self-Help Law ExPress » Blog Archive » Supreme Court hears Winkelman argument tomorrow

    February 26, 2007 @ 6:57 pm

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    […]      Oral argument will be held tomorrow at the U.S. Supreme Court in the case of Winkelman v. Parma City School District [official docket sheet].  The question presented to the Court is whether non-lawyer parents of a disabled child may bring a case pro se (without a lawyer) under the Individuals with Disabilities in Education Act [IDEA], 20 U.S.C. § 1400 et seq.  We’ve discussed this important case in two prior postings:  Can a parent be the “self” in “pro se” (Sept. 21, 2006) and Will Winkelman Harm Children? (Nov. 7, 2006).  Six federal circuit courts of appeal have ruled on this issue, but they have a three-way split on how to treat pro se parents under IDEA. […]

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