KCS First Quarter 2018 BSEA Commentary Is Now Posted. We Highlight A Strike Against Work Product Protection for Lay Advocates.

In a posting in July 2017, we celebrated a BSEA ruling that we hoped signaled the BSEA’s recognition of the importance of non-lawyer parent consultants as a resource to help parents – especially those without the means to engage attorneys – understand and make informed decisions in their advocacy for their children.  As we said in that post:

In a Ruling in the matter of In Re: Dorian issued on July 20, 2017, BSEA Hearing Officer Amy Reichbach held that the communications and materials of non-lawyer special education advocates are subject to the protections of the work product doctrine.  The hearing officer reasoned that such protection is necessary in order to minimize the potential chilling effect that discovery of such information would have on parents’ and their consultants’ ability to communicate freely when special education litigation is anticipated. …  We hope and trust that her reasoning will be adopted by her colleagues at the BSEA.

Unfortunately, our hopes for the Dorian analysis to be adopted in other BSEA decisions have not been realized, as readers of our commentary on the BSEA’s first quarter decisions and rulings for 2018 will see.  Hearing Officer Figueroa’s ruling in Duxbury Public Schools, BSEA #1803977, 24 MSER 23 (March 2018), denying work product status to an advocate’s records, now stands as the unfortunate rule by default, constricting the ability of parents and their consultants to speak freely without worrying about the likelihood of  school districts later fishing for the content of those communications with subpoenas and discovery requests at the BSEA.  Since one hearing officer’s analysis is not legally binding on another, and since assignments of hearing officers to cases filed at the BSEA are made at random, parents and parent consultants must proceed on the assumption that their communications will be open to the searches of school attorneys, even though a hearing request could be assigned to a hearing officer who would apply a more protective approach.

The work product doctrine was noted and affirmed in the U. S. Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947). While that case concerned certain attorneys’ records that were not subject to attorney-client privilege, the doctrine has since been codified and applied to other persons in the role of expert consultants, a category that certainly includes those who guide parents through the special education process as parent consultants. The reasoning of the Supreme Court in support of work product protections clearly applies with the same force to the communications of such non-lawyer advocates as it does to lawyers.  Here is what the Hickman court said:

Proper preparation of a client’s case demands that a lawyer assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

The IDEA’s many ambiguities afford opportunities for adjudicators to interpret and apply its dictates in accordance with their understanding of the governing purposes of the statute.  We always hope that judges’ and hearing officers’ interpretations of ambiguous standards and procedural elements will advance the cause of students whose mental and/or physical challenges place them chronically behind their less challenged peers – that is, after all, the founding mission of IDEA and, here in Massachusetts, of Chapter 766.  That is not, however, what has happened in the Duxbury ruling.

Our first quarter commentary outlines several other decisions and rulings that clearly demonstrate the need for parents to have strong expert guidance as they navigate the process, a need to which Duxbury pays little heed.

We can only hope now that later developments at the BSEA will provide opportunities for the tide to shift – be it through BSEA or DESE rule-making or by individual decisions – on this critical point of practice and procedure. Congress and our legislature intended informed parent participation to be a key element in special education process; a ruling that allows school districts to fish among the communications between parents and their advisors and thereby chill those communications undermines that aim.

Robert Crabtree serves of counsel in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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