The Committee on the Unauthorized Practice of Law is a committee appointed by the Supreme Court of New Jersey and is charged with issuing advisory opinions to and processing complaints against individuals alleged to have engaged in the unauthorized practice of law. The committee is also authorized to refer violations of law to law enforcement or other agencies. Opinions issued by the Advisory Committee are valued by the state bar and are strictly adhered to by practitioners, much like those issued by the School Ethics Commission.
Earlier this month, the Advisory Committee issued a rare reversal of an opinion pertaining to special education advocates, individuals or entities that assist parents of special needs children to obtain special education and related services for students in school districts around the state.
The earlier advisory opinion, Opinion 56, recognized that any party in a due process proceeding has the right be accompanied by and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, 20 U.S.C. §1415(h)(1).
That earlier opinion goes on to note that the New Jersey Supreme Court recognizes the role of non-lawyers in Court Rule 1:21-1(f) which provides that, subject to applicable limitations and procedural rules established by the Office of Administrative Law, a non-lawyer may appear in a contested case before that office “to represent parents or children in special education proceedings, provided the non-attorney has knowledge or training with respect to handicapped pupils and their educational needs so as to enable the non-attorney to facilitate the presentation of the claims or defenses of the parent or child.”
However, the court rule provides that “[n]o representation or assistance may be undertaken pursuant to subsection (f) by any disbarred or suspended attorney or by any person who would otherwise receive a fee for such representation.” Rules also require that the non-attorney advocate submit a written notice of appearance/application explaining their experience or expertise and certify that they are not receiving a fee for the appearance before the Office of Administrative Law.
In that hearing, the non-lawyer may submit evidence, speak for the party, make oral arguments, and conduct direct and cross-examinations of witnesses. However, the non-lawyer/advocate may not sign a consent order or stipulation for a party. A non-lawyer/advocate is granted an advocate-client privilege and work-product privilege. In Opinion 56, the committee concluded that in IEP meetings, the non-lawyer/advocate may not “represent” the parents or speak on their behalf, but was allowed to attend the meeting and consult with the parents regarding the development of the program and assist in the negotiations between the parents and the school. In addition, Opinion 56 determined that non-lawyer/advocates could accompany and consult with parents in mediation conferences with the child’s school regarding the child’s IEP but could not “represent” the parents or speak on their behalf in such proceedings. It further determined that representing a party in formal mediation is the practice of law and may be done only by a lawyer.
After Opinion 56 was issued, the Advisory Committee received a request to stay the opinion, which the committee granted. The committee then solicited comments from interested parties and issued Advisory Opinion 57, which superseded and modified the findings made in Opinion 56.
In Opinion 57, the committee determined that non-lawyer/advocates are practicing law when they advise, represent, or speak on behalf of parents and children about the child’s legal rights or the legal obligations of the school district at IEP meetings because the IEP is legally binding on the school district.
However, the committee determined that “[s]pecial education is one of the fields of law where the court permits non-lawyers to represent and assist parties in Office of Administrative Law cases when such conduct would otherwise be the unauthorized practice of law. R. 1:21-1(f)(8). Accordingly, where non-lawyers are sufficiently qualified, make the required application, and do not charge a fee for the representation, they are not engaging in the unauthorized practice of law.”
The opinion then noted that “it is not the unauthorized practice of law for a non-lawyer with special knowledge or training with respect to children with disabilities and their educational needs to represent parents or children before the Office of Administrative Law, or in mediation, including submitting evidence, speaking for the party, making oral arguments, and conducting direct and cross examinations of witnesses. However, the non-lawyer must submit the required application and no fee may be charged for these services. If no application is filed or a fee is charged for these services, the non-lawyer is engaging in the unauthorized practice of law.”
The opinion clarified that the non-attorney/advocate may charge fees for advising parents regarding educational problems, evaluating such problems, advising as to the proper educational placement for children with disabilities, producing technical reports, and serving as an expert witness. According to Opinion 57, lawyers may work with such non-lawyer educational consultants but may not “partner” with the consultant or share legal fees; the lawyer must be hired by the parents separately from the consultant.
More information about Opinion 57 can be found here. Board members seeking additional information may wish to speak to the board attorney or call the NJSBA Legal, Labor, and Policy Department at (609) 278-5254.