Lawyer who used to represent school district can now sue district, judge rules

Jon Campisi Jun. 16, 2011, 12:10pm

An attorney who formerly worked as assistant general counsel in the Special Education Unit at the School District of Philadelphia can represent parents of special needs students who file claims against the district, a judge has ruled.

In a June 7 opinion, Philadelphia Common Pleas Court Judge Albert W. Sheppard, Jr., wrote that Kenneth Cooper can, as a private attorney, take on cases involving parents who sue over the district’s special education offerings, or lack thereof.

Lawyers for the school district had filed a complaint in January seeking an injunction against Cooper, who worked as a district lawyer from January 2002 until May 29, 2010.

The complaint arose out of Cooper’s desire to provide legal representation to at least 12 private clients “materially adverse to his former employer and client, The School District,” according to the complaint, which was filed on Jan. 5 at the Philadelphia Court of Common Pleas.

In their complaint, district lawyers had argued that Cooper, who has law offices in Bala Cynwyd, Pa., would use specific knowledge of confidential school district practices to benefit his practice.

“In doing so, the defendant has breached, and continues to breach, his contract and fiduciary duty to the School District,” the complaint alleged.

Sheppard, however, ruled that Cooper could accept cases involving parents suing over special education services at the district, essentially denying the petition for injunction.

“A government lawyer is only disqualified from particular matters in which the lawyer participated personally and substantially,” Sheppard wrote in his opinion. “Disqualification does not extend to all substantive issues on which the lawyer worked.”

Sheppard noted that in a Jan. 13 hearing, Cooper testified that he had no contact or connection with any of his current clients while in his capacity as school district assistant general counsel.

Cooper also testified that most parent complaints concerning special education are based on what is known as an Individualized Education Plan, or IEP, which is catered to each individual student’s specific needs.

“Since the parent complaints are individualized and involve discrete facts about the specific child at issue, the current matters are not substantially related to any matters he [Cooper] handled while assistant general counsel for the school district,” Sheppard wrote.

Sheppard also noted that Cooper’s knowledge of school district policies was “general knowledge,” and did not preclude him from representing his current clients.

In the original complaint, school district attorneys had argued that Cooper had not only breached the district’s own code of ethics, but that he violated Pennsylvania’s Rules of Professional Conduct, specifically Rule 1.6, which prohibits a lawyer from revealing confidential information relating to representation of a client.

The judge ruled that the rules had not been violated. In his ruling Sheppard stated that, “Only specific knowledge of specific facts gained in a prior representation that are relevant to the matter in question will preclude representation. Parent’s attorneys are in possession of the very information that the school district claims is confidential. The general public is also aware of the financial and personnel constraints of the school district since the education of children is a matter of public concern.”

In the end, Sheppard ruled that the school district failed to present evidence that the Cooper used information garnered during his district employment to benefit his current situation in representing parents suing the school district.

During his time at the school district, Cooper had handled more than 650 claims filed by parents under the Individuals with Disabilities Education Act and other laws.

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