disabilities education act i would like to start off by discussing the notice of related cases that was filed by of helli regarding arlington v murphy in fact it is appellants position that arlington v murphy is not a related case because that case specifically addresses expert witness fees at issue in this matter is not witness fees for any particular proceeding what is the issue here are costs incurred by an attorney and costs as a part of the attorney's fees for prevailing party we believe that arlington not related in any way to this matter and that is why we did not file a notice of that with the court also in this matter it's very important i believe to note that i'm authorized practice of law is not an issue unfortunately in the district court the judge raise that repeated lee and use that as a basis in part for his determination regarding fees well do we have precedent setting  fees i think we're talking apples and oranges we don't have a situation where a lay person as in the aaron's case than a number of other cases cited by appellate was representing the student in fact i was representing the student as the attorney and as the attorney i hired individuals staff copy services service agents to to effect and do certain things for me in the prosecution of the case one of those individuals was an advocate who under california education code five six five zero five is allowed to accompany assessed all of the word represent not used in the education code but allowed to represent under the policy in practices and the state of california in the straight of due process hearing individuals at due process hearings that is not normally my practice as the trial evidence showed but because we were backed into a corner because this was an expedited hearing with the sole issue overriding issue being whether or not the child should be return to his educational placement instead of removed for a disciplinary action and because the state of california administrative hearing office would not continue this would not allow my client in this matter administrative matter sympathetic to their case but we felt under their control in law that no fees were available to parents who were using their legal skills to represent their trial here you have a staff person who was performing your your functions under the circumstances why is it any different because that person is doing so under my direction if we were talking about an attorney service who was performing services as an independent contractor the court would have any trouble i believe in awarding those costs as part of the attorney's fees if i were hiring a clerk to sit by me at hearing as i have done many times to sit and take notes and assist me at hearing i don't believe this court would have any trouble awarding that cost as part of the attorney's fees reasonable attorney's fees and because the individual the advocate is permitted under california law to accompany and assist and to represent an individual at hearing when she did so under my explicit direction although i was not in the room with her she did so at my direction i prepared her i directed was in constant communication at the time i was trying to conduct another hearing she was under my supervision and i think that the position of a pelleas that under supervision work product requires that she be under my immediate supervision is not supported by any authority whatsoever if that were so the other costs that an attorney is entitled to have reimbursed for reasonable internees that the party would be entitled to would not be allowed as well because i do not supervise service of process i am not there standing over the agent i do not supervisor stand in the room each time my secretary or clerk is doing work i give them general direction they perform the service might my big concern regarding the practice of law claim in this is that it's simply not supported by california education code some states do not allow individuals who are not attorneys to representative process that is not california california authorizes that and it is standard and common practice with the administrative due process hearings the the court referred several times in the the trial and ma references to congress's intention that congress did not intend advocates to ask questions at hearing and again that is not the state of the law it is not california law and that was the part of the reason i believe behind the judge's determination the judge also found a trial based upon the attorney bill that was provided it was clear error in his findings of the facts the indication the female provided indicated preparation advocate for due process and the court indicated that it apparently did not read preparation apparently read only advocate due process because in the decision the court found that i did not advocate for the student on those dates there was no evidence ever presented that in fact i had been actively advocating for the student but i had prepared the advocate as the record duly noted several times and spent many hours doing so preparing questions tutoring the advocate which arlington says is not compatible and shapiro would say or whether it's a pure cost issue absolutely asked as a that's a thorny question i think it is a very thorny question and i see two sides of this the first right being that the court can decide that a lay person attorney may never provide services for pay to an attorney who is of record in a matter if that is the decision of this court i see a real public policy problem given a field where there are very few practitioners on this side of the table who represent students and where parents are desperate for some assistance given the bar to any payment for anything unless first you have a party who prevails and number two you show that the rates and services are reasonable and number three that the services were under the auspices and supervision of attorney i don't think that that would be an appropriate finding i think that's that individuals who are advocates are allowed both under federal law and under california law to work with an attorney's and to  the statement the billing statement and the contract were brought into the trial and my prior contract had parents all the parents are almost all the parents my office works with are indigent or very low income and do not have the monies to fund lawsuits their agreement as is in the record was that they would pay fifteen hundred dollars as their total obligation and money out of  agree to cooperate in the process of prosecution of any action for attorney's fees should they prevail the court found that the limitation on what the appellant should fifteen hundred or more to pay the fifteen hundred and then you were to pay to get out of that is that the new with your arrangement or is that even part of the record it was exactly part of the record and it's part of the agreement between my office and the parent also with the understanding when we first met with the parent i introduced just as i introduce my secretary of my office staff i introduce the advocate to be working on the case as i did in this case and that was the agreement that the advocate would be part of the fee the the fact there was another finding by the court that any collection fees or charges related to attempting to obtain attorney's fees were not appropriately raised because they were not part of  hearing to the contrary fourteen fifteen twenty u s c fourteen fifteen very clearly says that attorneys fees are appropriate any action proceeding are proceeding under fourteen fifteen fourteen fifteen is also the section that addresses attorney's fees so that an action to proceed to attempt to collect attorney's fees would be an appropriate action for the  know of the contract that we had entered into the appellant and my office that required them to pay fifteen hundred and then take further action upon prevailing cannot be used as the basis for an award of attorney's fees and i think there are a number of decisions we cited that are very very clear as to that fact and i think the record was very clear from the trial that the court good morning your honor i'm john hiatt she'd of percent in charge of unified school district before i get into the thrust of my comments i'd just like to comment on some of the matters raised by counsel with respect to the relationship between really advocate and the attorney that was an independent contract entered into between the two persons the record does not contain the contract itself it was discussed at the trial but it was never entered into  evidence at the trial at this point in time i don't recall the exact details of it right now so i don't recall what it says in terms of the parent's obligations with respect to the lay advocate and i do not believe that the would be but the but that contract between the counsel and the parents are part of the record so that can be reviewed with respect to the award of the attorney's fees in the month fifteen hundred dollars  the court did not base did not necessarily based its findings of fifteen hundred dollars based on the contract between the parents and the attorney that was not part of the findings nor the decision of the court the court based its decision based on the work performed by misfired mother the attorney and the evidence at trial it should be noted that the contract between the parents and the attorney can be used to determine what might be a reasonable fee but it should not be necessarily the sole determination as to what the reason reasonable tourney's fees are in a particular case but it can be looked at when the order from the central dist t indicates that the district court went through a lodestar analysis at all so it didn't explicitly say that i believe that the court had no problems with the initial  as though the court relied on the fifteen hundred dollars the agreement because the court specifically referenced of the fee agreement paragraph two notes what was charged and then fine fifteen hundred dollars i know it is close to that though and it could very well be that that was what was in the court's mind but i think the evidence does support that on other grounds i think the evidence the there was the meeting with the parents on the on april twenty sixth and then counsel did perform some services such as writing the opening statement and maybe writing some questions and then working on the clothes thing the attorney spent approximately forty seven hundred dollars total in the case the court however hatched has the authority to use this discretion to reduce that amount and one of the basis for reducing the amount would be the degree of success in the case in the underlying case in this particular case there are three issues and the parents won on only one of the issues and so i think therefore that the court can take that forty seven hundred dollars or that amount and then reduce it point that is but you know i was not there at the hearing and i don't know how much time was devoted to that and granted i think that was probably the the main thrust of why they felt the request for need the right program for the child prospectively so i think those are equally important issues for the education of the child at that time so to say that the discipline and the expulsion of the  child was ninety percent of the case i don't know you can make an argument that the prospective education of the child based on the functional behavior analysis was also a very important thing to how do we know what the district court  that would justify the award of fifteen hundred dollars based on the evidence and based on that type of analysis and i and i don't think there's anything talk in generalities do you have a theory on why the number fifteen hundred was arrived at by this no i don't it could fifteen what i meant what i meant by it was that you know there were if that was a fact that was part of the contract and that was something that could be used to determine what might be a reasonable fee because as i mentioned before a contract with a retainer agreement the case but i don't think it should be based on that retainer agreement as i you know discovered later through my research is that that should not be the determinant factor in terms of what is the reasonable fee it can be looked at but it should not be  determinant factor well here we are fighting over a pretty small amount of money have you have you have you having success and mediating this claim no we have not and i gather from your response that these systems of the circuit mediator it and that is the difficulty of all of this is because that the economics the finances you know may get out of hand but i think this case also raised the other very important issue i think of where the not a lay person cases attorneys fees and those costs that are listed in section one nine hundred twenty and the problem now is that we have a lay advocate who is coming in and and it's now affiliating herself with an attorney and under that affiliation is now able to recover her fees her costs even though these are not reasonable but these are not attorney's fees nor are they one of the listed costs under the law and this is one way of getting around  that that limitation as to what the federal law provides in terms of the recovery of costs and that is the concern that i have and my think this case is important is because what are we going to say in terms of what persons can recover cost in a case like this and how far do we go out do we always have to party too much on the record is this a recurring issue in your district this particular one it's not but i think it may have some significance for example in the use of paralegals and other people that not subsumed in the attorney's fees only they are bills separately and then they'd then seek them from school districts and you know that's and i'm of sort of afraid that that's where we may be going is to start to expand the cost that parents are permitted to recover and i don't know where the outer boundary is right now i would hope to think that when the last is that they can recover attorney's fees as costs that that's exactly what it means that they can get their attorneys fees which subsume all of the underlying cause the incur in their business plus all of the related costs such as witness fees that are allowed under federal law so that's why i think this particular case has importance because it might help to define those parameters and where we go from here but in terms of the pure economics of it if you had to pay the attorney for her fees and that she is able to hire a paralegal or an advocate for much less cost than and you're paying less money and it works as an efficiency of using a lower paid person now and if the only cost recovery in the only recover can be for attorney's fees and i think the become a hub if you will of a business where the attorney then hires a number of advocates and paralegals to do the work you know and then recover those people's work out there and then what you now have is you effectively have the parents recovering the fees of those advocates even though the lot of limits the fees to attorneys and yes there may be some economic economic benefit in doing that but the law says that only attorneys can collect fees and not have the kids and also we have to worry about the public policy of do we want to encourage lay persons who have unknown qualifications to represent families and i think that may be another concern is that on this case it would've been obviated if she'd been able to get her continuance that is true that would have been that would have been the result for her but it but i'm saying that that could pose a problem and that's something that i think maybe we should think about and consider how we're going to limit those boundaries and i think that that is the importance of this particular however illegal it is not precluded either by state or federal law and anybody working under my office we continue to contend is a cost just as it is for the bills that i have seen from mr hayes she does office to his it's different i understand and i understand that you know that i still believe that all of the cases at the case the missouri jenkins was looking at had to do with work done in an office however we have a particular situation here where both state and federal law have authorized them are paralegals who understand who know who are capable of filling in and doing the things that an attorney in special education would do without the high cost and usually with the better reception from from staff i walk in as an authority even though i'm a teacher and it's not quite the same as having somebody who is a lay person so it's a very advantageous thing for parents to have the use of an advocate and again there is nothing in the law that precludes that and there is nothing in my reading of any case law that precludes my payment of aid an advocate paralegal anybody who was working for me in the case  was removed for a behavior incident we filed related to returning him which was our goal to his regulator cation placement in high school was where there are a number of issues had they done procedures correctly did need to do a manifestation determination differently and one of the issues was not decided at all a second issue was decided they had to do with time lines for doing the manifestation of terminations but it was attorney person has the right to appear in represent a party hearing as i believe the court did very clearly in statements at trial i don't think such a it determination would be in keeping with state or federal law the court could include or determined that attorney's fees do not include payment for advocates or for paralegals anybody who is not the attorney of record in a case and again i don't see any authority for that especially given missouri v chain comes which is very clearly support staff although i gree that the advocate is a little bit different but i think id is a different set of laws on the court could contract limits the amount of attorneys fees to which appellants were entitled again i don't think that's supported by the law it's our belief that the order of the court for fifteen hundred dollars in attorneys fees a matter in which the party substantially prevailed to which i provided attorney's fees the advocate provided services which the parents are obligated to pay for by contract would mean that the parents the parents here in would be entitled