NY Attorney Denied Fees for Representing Daughter

Today’s New York Lawyer alerted me to an interesting case about attorneys’ fees where a parent acted as his child’s attorney. 

The case involved a lawyer who brought suit pursuant to the Individuals with Disabilities Act (IDEA) on behalf of his disabled daughter against a school district over the daughter’s individualized education program (IEP).  Although the attorney was successful in the underlying suit, the District Court denied the attorney-father’s request for attorneys’ fees. The District Court reasoned that attorneys’ fees provisions are intended to assist litigants who would otherwise be unable to afford to retain independent counsel, and since the attorney here was the litigant’s father (and therefore litigant did not pay for the representation), the attorneys’ fee provision did not apply. 

Last week, the Second Circuit upheld the District Court’s denial of fees in S.N. v. Pittsford Central School District.  The Second Circuit’s relied on the Supreme Court’s decision in Kay v. Ehrler, (499 U.S. 432), which determined that an attorney representing himself was not entitled to fees under the Civil Rights Attorney’s Fees Awards Act.  In Kay, the Supreme Court noted that an award of attorneys’ fees to a pro se litigant – even where that attorney is a member of the bar – would be a disincentive to obtaining competent independent counsel.  The Court also indicated that an attorney who represents himself is deprived of the assistance and objectivity of an independent third party.

Quoting portions of Kay, the Second Circuit opined that when a parent represents a child pursuant to IDEA, there is a danger that the “parent-attorney would lack sufficient emotional detachment to provide effective representation.”  Noting that the IDEA itself recognizes the ‘intense personal interest’ of parents in securing an appropriate education for their children, and that parents are significantly involved in the IEP process, the Second Circuit concluded that in order to best promote the effective prosecution of a child’s meritorious claims and to promote hiring independent counsel, attorney-parents are not entitled to attorneys’ fees under the IDEA.