Experts, Plane Trips, Fine Hotels Pile Up Legal Tab For County Schools
Financially-Strapped Schools Billed For Luxury Hotel Stays
The Chattanoogan.com, March 17, 2005

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Charges from an Atlanta law firm to the Hamilton County Schools in an autism case include a number of meetings with experts in Los Angeles, New York City, Bozemont, Mt., and elsewhere involving expensive travel and hotel bills. The experts are getting fees as high as $350 an hour.

Attorney Charlie Weatherly billed the county for several nights in a $459 room with views of the Pacific Ocean at the Fairmont Miramar in Santa Monica and stayed several times at the New York Marriott - Marquis.

Attorney Weatherly has charged the county schools some $1.7 million thus far, including his travel and his $275 hourly rate. The cost of the experts has added more than $600,000 to the bill. And the case is ongoing.

Gary Mayerson, attorney for the Deal family that brought the lawsuit, said, "I can't believe that the powers that be in Hamilton County let these kind of expenses mount. Somebody was asleep at the wheel. It's just shameful."

He added, "What they paid just one of their experts is far more than we asked for them to fund for this poor kid."

County school officials say it is important to defend the case because it would set an expensive precedent if the Deal family prevails. County School Board member Joe Conner said it could mean up to $11 million in costs for the county schools to have to provide similar programs for other special education children. Attorney Mayerson said the Deals had asked for a 2-year intervention program that would cost less than $100,000. He said his charges to the family are a small portion of the amount the county has paid for legal bills. He said he knows of no other similar claims that have been filed with the county schools by parents of special education children. He said, "Where is this $11 million threat?"

Supt. Jesse Register said Friday afternoon, "Since the beginning of this case, the school system has complied with the current Supreme Court standard that says school systems have to provide a reasonable and adequate education to children with special needs. The school system has worked very hard to provide teachers and staff with specialized training and professional development to ensure students with special needs have an effective individual education plan that blends well within the context of our public schools, the Individuals with Disabilities Education Act (IDEA) and budget.

"Unfortunately, the Deal family disagreed and chose to file a lawsuit against the school system. The school system was left with no option but to defend itself in court. Contrary to what attorney Gary Mayerson stated, if the school system lost or settled this case, a new national precedent will be set on how schools educate children with special education needs. In his ruling, Judge R. Allen Edgar agreed with the school system, but the Deal family chose to appeal his decision to the Sixth Circuit Court, which overturned certain parts of the decision.

"The financial impact of this decision is staggering and could cost school systems locally and across the nation millions of dollars.

"The Hamilton County Board of Education continues to evaluate the case as it proceeds."

In response to comments by attorney Mayerson, Dr. Register said, "When the school system hired attorney Charlie Weatherly, he brought in several nationally-recognized experts on educating children with special needs. These experts reviewed and examined our special education program and said the school system has our special education program and said the school system has complied with the current Supreme Court precedent.

"In addition, these experts made several system-wide recommendations that the school system implemented to improve its special education program."

The latest ruling in the case is from the federal Sixth Circuit Court of Appeals – in favor of the Deals.

A review of the records shows that attorney Weatherly first began billing the county schools in November 2001 when he and associate Kathleen Sullivan drove up from Atlanta for a dinner meeting with Irise Chapman and Jane Dixon at the Back Inn Café at Bluff View.

Attorney Weatherly went into full swing the following September defending the county. He and associate Jennifer Fain flew out to the West Coast "to meet with experts" he regularly uses in handling special education cases around the country.

Their plane tickets to San Francisco were $1,044 each, and it was another $165 each to fly on to Los Angeles. They stayed at the Fairmont Miramar at rates of $312.62 each. Breakfast for two charged to the county schools was $51.53. Ms. Fain stayed in California, but attorney Weatherly flew back to Atlanta. Then he bought another ticket to LA at $1,161 and flew right back to the West Coast. Ms. Fain had another airplane fare – from LA to San Francisco – for $163.50. Total bill to the county for the California excursion was $4,655.48.

Later in the month, attorney Weatherly and Ms. Sullivan went to Columbus, Ohio, on the Deal case. Their rooms at the Hyatt Recency were $184 each, and an in-room dinner was $52. Airfare for Ms. Sullivan was $970 for that trip.

Then in October 2002, Ms. Sullivan went to New York on the case, costing $1,082.

Dr. Betty Jo Freeman, a professor of medical psychology at the UCLA School of Medicine, was flown into Chattanooga. Her plane trip from California cost $1,284. Two nights at the Chattanoogan hotel were $242.

That same month, attorney Weatherly and Ms. Fain had billings for a trip to New York City. Plane fare for Ms. Fain was $346.50. They stayed two nights at the New York Marriott in $295 rooms. One of their dinners was $79.78. Cost of that trip was $1,855.

In late October, there was another trip to California by attorney Weatherly and Ms. Fain that was billed to the county schools. They stayed at the Hyatt Westlake Plaza at Thousand Oaks, Cal., at $218 each on the night of the 29th. Attorney Weatherly was in a $469 room at the Fairmont Marimont the next two nights. Ms. Fain stayed there the night of the 31st at $256. The plane tickets were $2,052 each.

Attorney Weatherly and Ms. Fain had a Knoxville trip a few days later. They flew from Atlanta – at $816 each. Their hotel bills were $102 each.

There was another New York City trip billed to the Hamilton County Schools later in September 2002 at $406 for the plane tickets. They went back to New York in early December – with the airfare at $416 each. Their hotel rooms at the Radisson Lexington Hotel were $403 apiece.

Attorney Mayerson said the New York City trips were to take depositions from experts. He said, "The county lawyers got permission from the court to fly around the country and add to their discovery. We mainly stayed out of that phase or it would have bankrupted us. We didn't have a school system to fund us."

A week later it was arranged for the Atlanta attorneys to fly to Bozeman, Mont., for a session with the experts, who flew there also at the expense of Hamilton County taxpayers. The tickets for attorney Weatherly and Ms. Fain were $1,035 each. It cost county taxpayers $1,191 to fly Dr. Freeman there from California. A dinner for the two lawyers, Dr. Freeman, Dr. Ron Leaf and Mitch Taubman was $214.

Dr. Freeman flew into Atlanta during the Christmas holidays of 2002. Her bill for five nights at the Ritz-Carlton Buckhead was $3,486.12, though she did not charge Hamilton County all of that. She charged the county $100 per night on her room that was over $600 a night counting taxes. County taxpayers paid her air fare of $373, her taxi bill of $72 and her parking fee of $68.

Dr. Freeman had a bill for work from Nov. 5 to the end of the year of $77,400 for 258 hours at $300 an hour.

In early January 2003, attorney Weatherly and Ms. Fain made another New York City trip with charges to Hamilton County Schools. They had $456 plane fares and each had $237 rooms at the New York Marriott. A long distance telephone bill for the "telephone deposition of Mr. Deal" was $235.20.

Gina Farley of the Weatherly team came up to Chattanooga on Jan. 19, 2003, and her hotel room was $154 a night for six nights at the Marriott. She charged $93.16 for mileage each way between Chattanooga and Atlanta. Groceries for the litigation team were $75.64. Jennifer Fain and attorney Weatherly spent five nights each and Kathleen Sullivan four nights in the $154 rooms. A room was reserved for the litigation team for five nights at a cost to the county schools of $115 per night.

Attorney Mayerson said he stayed at the Holiday Inn Express during the trial.

The Behavior Therapy & Learning Center of Seal Beach, Calif. (Dr. Leaf) billed the county schools $81,900 just for its December 2002 work. The bill lists 16 hours ($5,600) one day and 17 hours ($5,950) the next. The Leaf bill for December also included $357.50 for air fare, $595 for a rental car, $74 for supplies, $126 for "a limo," $42 for gas, $53 for restaurants and $194 for food. The "grand total" was $83,383.87.

For her work Jan. 1-24 during the time the trial was going on, Dr. Freeman sent a bill for $45,900 - $300 an hour for 156 hours. She also had a $1,517 plane bill, $168 for a night at the Marriott and $197 for parking at the LA Airport.

In June 2003, Dr. Freeman flew back in. Her plane fare was $469 and the hotel bill was $538. The rental car cost $210.

Last August, the Weatherly team went to Cincinnati for the oral arguments before the Sixth Circuit judges. During the three-day stay, lodging at the Hyatt Regency for attorney Weatherly was $700 and for Kathleen Sullivan was $520. The plane trip for Ms. Sullivan cost $1,086 and for attorney Weatherly, $797. The costs for that trip added up to $3,740.

Charlie Weatherly and the Hamilton County Schools are asking that the Sixth Circuit reconsider its unanimous three-judge ruling, and there is discussion of taking it on to the United States Supreme Court.

In California, a Federal Judge has already sanctioned a law firm for lying and cheating, but unfortunately only after the expenditure of almost $500,000 of taxpayer money:

Lying, obstruction cited in sanctions for law firm
Fresno's Lozano Smith, attorney ordered to train in ethics.
By Erin Kennedy, The Fresno Bee, January 18, 2005

U.S. District Court Ruling

Fresno law firm Lozano Smith and its attorney Elaine Yama have been sanctioned by a federal judge for lying, misrepresenting law and facts, and intentionally dragging out a case involving a school district and a special education student.

U.S. District Court Judge Oliver Wanger fined the law firm, Yama and Bret Harte Union High School District in Calaveras County $5,000 each. He also ordered Yama to take 20 hours of ethics courses and Lozano Smith to conduct ethics training for all of its attorneys and shareholders.

Lozano Smith is one of the largest education law firms in the state and the main legal representation for Fresno Unified, Clovis Unified and many other local school districts.

Mike Smith, the firm's founding partner, could not be reached Monday, and Yama declined to comment when reached at home.

Former State Bar Association President Anthony P. Capozzi of Fresno said the sanctions were "very unusual." Normally, it is the Bar Association, not a federal judge, that would ask an attorney in such circumstances to take ethics courses, he said.

Wanger's 83-page decision, dated Wednesday, has been circulating by e-mail among special education advocates and parents.

"I got it 23 times in my e-mail inbox over the weekend," said Deborah Johnson, president of Fresno Unified's PTA and its Community Advisory Committee on special education.

Johnson said the sanctions might help members of Fresno Unified's special education advisory committee, which was disbanded this summer by district trustees on the advice of a Lozano Smith attorney. Parents in the group have filed a state complaint calling the action illegal under state education codes.

Fresno Unified board President Luisa Medina said she intended to review Wanger's decision with other trustees and the superintendent. "It troubles me. ... It is the judge's statements about 'misstatements of the law and bad faith' that are bothersome."

Wanger wrote that Yama's behavior in court "cannot be interpreted as anything other than a bad-faith attempt to mislead the court, obscure the real facts of the case, to obstruct and/or harass the plaintiff ... either to wear down the plaintiff or to win a victory that was clearly unjustified by either the facts or the law."

The judge elaborated on Yama's actions: "Her presentation was carefully constructed to omit or minimize adverse facts. Portions of transcripts were cited out of context to support made-up facts. ... She was reckless. She systematically distorted the record and repeatedly ignored plaintiff's objections and warnings that she was doing so."

He pointed out that Yama had been practicing for seven years - three of them in special education law at a firm that billed itself as a specialist in that area.

Wanger found that Yama was not the only one to blame, since three attorneys had signed "misleading pleadings" in the case and had actively worked on it, including Mike Smith, main counsel to Fresno Unified.

Wanger wrote, "While isolated errors or misstatements might be excused, given the size of the record, the sheer volume of misstatements ... [the] only reasonable inference that can be drawn is that Ms. Yama and her law firm intended to obstruct at every step and stand education law on its head."

Wanger noted that Lozano Smith characterizes itself "as a recognized leader" and "major firm" in education law and conducts training for attorneys and school administrators on special education legal issues.

"It can only be hoped," Wanger wrote, "that these practices are not the standard mode of operation for Lozano Smith attorneys due to their potential to materially harm other special education plaintiffs."

Maureen Graves, the Orange County attorney who fought Lozano Smith in court, estimated that the Bret Harte school district, east of Stockton, spent nearly $500,000 on a case that she once had been willing to settle for $8,000.

Graves, who works alone out of her garage, took the case of special education student Robert Moser for no fee because she thought it would be easily won or settled. She was shocked that it ended up in federal court and took more than seven years of legal wrangling.

Moser and his parents requested a hearing in 1997 because they felt Bret Harte district ignored the high school student's medical condition and failed to properly assess his learning difficulties. The case was lost at an administrative hearing and appealed to federal court.

The now 23-year-old graduate has won tutoring services and vocational assessments and counseling from his old school district.

Lozanzo Smith, California's Largest Law Firm, is Sanctioned By a Federal Judge

California Federal Judge Sanctions Law Firm For Lying in a Special Education Case