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Tool 95: Advocate vs. attorney: what each costs, what each can legally do, and when

THE RULE

The Individuals with Disabilities Education Act (IDEA) lets you bring to an IEP meeting anyone who has knowledge or special expertise about your child (34 C.F.R. § 300.321(a)(6)). You - not the district - decide whether the person you invite has that knowledge (34 C.F.R. § 300.321(c)). An advocate qualifies.

At a due process hearing, you have the right to be accompanied and advised by an attorney and by individuals with special knowledge or training about children with disabilities. But whether a non-attorney may actually represent you at the hearing is decided by your state’s law (34 C.F.R. § 300.512(a)(1)).

If you prevail with an attorney, a court may order the district to pay your reasonable attorney’s fees (20 U.S.C. § 1415(i)(3)(B)). The Supreme Court has held that this provision does not cover the fees of experts or consultants (Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006)). Advocate fees come out of your pocket either way.

WHY IT MATTERS

The two roles look similar in a meeting and are very different in a dispute. An advocate can sit beside you at the IEP table, read the data, and keep the meeting honest. An advocate cannot give you legal advice, cannot file legal papers for you, and in many states cannot represent you at a hearing. If your dispute is headed toward due process, an advocate alone may not be enough - and finding out late costs time your child does not have.

The reverse mistake also costs money. Paying attorney rates for work an advocate does well - meeting preparation, records review, progress-data tracking - can drain the budget before the real fight arrives.