May a school district's lawyer who attends an IDEA ARD/IEP meeting communicate with represented parents about the meeting's subject matter when the parents' lawyer does not attend?

Plain-English summary

The opinion addresses a fact pattern in which a school district sends its lawyer to an ARD/IEP meeting under the Individuals with Disabilities Education Act, knowing that the child's parents are represented by counsel but that the parents' counsel will not attend. The Committee notes the U.S. Department of Education and IDEA § 1415(i)(3)(D)(ii) discourage lawyer attendance at IEP meetings.

The Committee applies Texas Rule 4.02(a), which prohibits a lawyer "in representing a client" from communicating, or causing or encouraging another to communicate, about the subject of the representation with a person the lawyer knows to be represented by another lawyer regarding that subject, absent the other lawyer's consent or other legal authorization. Comment 1 to Rule 4.02 says the rule reaches communications that are in substance from the lawyer, even if delivered in form by the lawyer's client. The Committee cites Opinion 600 (Aug. 2010) (lawyer for governmental entity may not communicate with a represented person and may not cause or encourage agency employees to do so) and Opinion 474 (June 1991) (lawyer suing a city may not communicate with a city council member about the litigation) as direct authority.

The Committee draws the line: the school's lawyer may attend the ARD as an observer, may answer the school representative's questions privately, and may privately counsel the representative. The school's lawyer violates Rule 4.02(a) by directly addressing the parents about the IEP subject matter, or by scripting or directing the representative to do so as a conduit.

In practice

Under this opinion, conduct by a school district's lawyer at an ARD/IEP meeting that consists of directly communicating with the represented parents about the subject of the representation, or causing or encouraging the district's nonlawyer representative to convey what is in substance the lawyer's communication, is prohibited by Rule 4.02(a) when the lawyer knows the parents are represented and the parents' lawyer is absent. Per the opinion, observer attendance and private advice to the represented governmental client remain permissible.

Common questions

Q: May the school's lawyer be present at the ARD at all if the parents' lawyer is absent?

A: Yes. Per the opinion, attendance as an observer and as an adviser to the school's representative is permissible. The Rule 4.02(a) issue arises only with direct or substantively-directed communication to the parents about the subject of the representation.

Q: What about answering procedural questions the parents pose?

A: The opinion does not carve out routine procedural exchanges; the rule prohibits communications "about the subject of the representation." Per the opinion, the analysis turns on whether the communication concerns the IEP subject matter the lawyers represent the parties in.

Q: Does the school's lawyer's relationship to a governmental client change the analysis?

A: No. Rule 4.02(a) expressly applies to communications with "a person, organization or entity of government." The Committee cites Opinion 600 for the proposition that the rule reaches governmental lawyers and that the governmental lawyer may not cause or encourage agency employees to relay the lawyer's communication.

Q: How does this opinion connect to Opinion 474?

A: Opinion 474 (June 1991) is the converse: a private lawyer suing a city may not communicate with a represented city council member about the litigation. The Committee applies the same Rule 4.02(a) framework here.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 4.02(a), the Texas analog of ABA Model Rule 4.2, which prohibits communications with a represented person about the subject of the representation absent the represented person's lawyer's consent. The federal statutory backdrop is the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482, particularly the IEP-team procedure and the fee-shifting limitation in § 1415(i)(3)(D)(ii).

Citations and references

Rules of Professional Conduct:

• Texas Disciplinary Rule 4.02(a) (communication with represented persons)

Statutes:

• Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482
• IDEA § 1415(i)(3)(D)(ii) (limit on attorneys' fees for IEP team meetings)

Federal Register:

• 64 Fed. Reg. 12478 (U.S. Dept. of Education: attorney attendance at IEP meetings should be "strongly discouraged")

Other opinions cited:

• Texas Op. 474 (June 1991) - private lawyer's communication with city council member in litigation
• Texas Op. 600 (Aug. 2010) - government lawyer communicating with represented person; agency employees as conduits

See also

• TX Ethics Op. 710: Rule 4.02(a) Application in Other Settings - same Rule 4.02 framework

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-703/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_703.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

If a lawyer for a governmental entity attends a meeting between a representative of the governmental entity and an individual known to be represented by a lawyer regarding the subject of the meeting, and the individual's lawyer does not attend the meeting, may the lawyer for the governmental entity communicate with the individual without the absent lawyer's consent?

STATEMENT OF FACTS

The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 (IDEA), funds public education for children with disabilities. Among other procedures, IDEA requires that schools and parents meet to formulate an Individualized Education Plan (IEP) for any student who has a disability requiring specialized instruction. These meetings, called Admission, Review, and Dismissal (ARD), occur when requested, when changes are made to a student's IEP, or at least annually.

Although both the school and a child's parents are permitted to have their lawyers present at ARDs, "the attendance of attorneys at IEP meetings should be strongly discouraged," according to the U.S. Department of Education. 64 Fed. Reg. 12478. The Department bases this recommendation on its view that the presence of lawyers "would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child." Id.

The Department's view is consistent with IDEA § 1415 (i)(3)(D)(ii):

Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e).

Thus, in most circumstances, neither schools nor parents may recover attorneys' fees for having their lawyers participate in ARDs.

Nevertheless, some schools include their lawyers at ARDs, a practice that has received criticism. See 'Intimidation tactic'—special ed parents see school attorneys in routine meetings (Houston Public Media Apr. 26, 2023), available at https://tinyurl.com/23vz26l9 (last accessed August 23, 2024). In the scenario considered here, a school's attorney knows that a child's parents are represented by an attorney regarding the ARD, but the parents attend the ARD without their lawyer. The school's representative has instructed the school's lawyer to attend the ARD.

DISCUSSION

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct states:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Comment 1 explains that Rule 4.02(a) "is directed at efforts to circumvent the lawyer-client relationship existing between other persons, organizations or entities of government and their respective counsel." Comment 1 further notes that Rule 4.02(a) "prohibits communications that in form are between a lawyer's client and another person, organization or entity of government represented by counsel where, because of the lawyer's involvement in devising and controlling their content, such communications in substance are between the lawyer and the represented person, organization or entity of government." See Professional Ethics Committee Opinion 600 (August 2010) (concluding that a lawyer for a governmental entity may not communicate directly with a person known to be represented in the matter by a lawyer who has not consented to the communications and may not cause or encourage such communications by other agency employees).

The question presented here is the converse of an issue the Committee addressed in Opinion 474 (June 1991). There, the question was whether a lawyer representing an individual in a lawsuit against a city may communicate with a member of the city council about the pending litigation. The Committee concluded that, by doing so, the lawyer violated Rule 4.02.

The same answer applies here. If the school's lawyer knows that another lawyer represents the child's parents in connection with the formulation of an IEP (i.e., the subject matter of the ARD), then Rule 4.02 expressly prohibits the school's lawyer from communicating with the child's parents about that subject without the consent of the parents' lawyer. The school's lawyer may attend the ARD as an observer and as an advisor to the school's representative, may respond to questions from the school's representative privately, and may privately offer advice to the school's representative about the issues involved. But the lawyer will violate Rule 4.02(a) if he or she communicates directly with the parents about the subject matter of the ARD, or if he or she causes or encourages the school's representative to deliver to the parents what is in essence a communication from the lawyer.

CONCLUSION

If a lawyer for a governmental entity attends a meeting between a representative of the governmental entity and an individual known to be represented by a lawyer in the matter, and the individual's lawyer does not attend the meeting, the lawyer for the governmental entity may not communicate or cause or encourage another to communicate about the subject matter of the representation with the individual without the absent lawyer's consent.

Tex. Comm. On Professional Ethics, Op. 703 (2024)