NON-LAWYER SPECIAL EDUCATION CONSULTANTS AND THE UNAUTHORIZED PRACTICE OF LAW
On September 30, 2020, the Committee on the Unauthorized Practice of Law (“Committee”) issued Opinion 56, entitled, “Non -Lawyer Special Education Consultants and the Unauthorized Practice of Law” (“Opinion”). This Opinion was in response to a grievance regarding a non-lawyer who represented parents and children in special education proceedings before the Office of Administrative Law. On October 16, 2020, the Committee stayed its Opinion pending submission of comments from interested persons and issuance of a superseding opinion.
The Committee first examined the legal framework that allowed the participation of a non-lawyer in special education matters. Any party to an administrative due process hearing has “the right to be accompanied 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. 1414(h)(1). Under New Jersey Court Rule 1:21-1(f)(8), a non-lawyer may appear before the Office of Administrative Law “to represent parents or children in special education matters, 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 New Jersey Court Rules also prohibit a non -lawyer from receiving a fee for such representation.
Then, the Committee turned towards the role of non -lawyers who attend I.E.P. meetings and mediations with parents. Typically, the non-lawyer presents as an advocate or consultant. The Committee reviewed that the non-lawyer “may not ‘represent’ the parents or speak on their behalf, but may attend and consult with the parents regarding the development of the program and assist in the negotiations between the parents and the school.” In order to assist the parents of a child with a disability in negotiations regarding a child’s I.E.P., the Committee wrote that the non-lawyer must “have requisite special knowledge or training with respect to children with disabilities and their educational needs, provided the parents are present and contributing to the effort and the non-lawyer does not represent them or speak on their behalf.”
Non-lawyers who attend I.E.P. meetings may charge parents for their attendance, but they may not charge parents for representing them in mediation or administrative proceeding.
In staying the Opinion, the Committee solicited comments to focus on the following questions: 1. Whether the non-lawyer advocates should be permitted to represent, and speak on behalf of, parents or children with disabilities in meetings with the school district concerning the individualized education program (IEP), without the presence and/or participation of the parents or children? 2. Whether non-lawyer advocates should be permitted to represent, and speak on behalf of, parents or children with disabilities in mediation proceedings concerning the IEP? 3. What safeguards should be required when non-lawyer advocates represent, and speak on behalf of, parents or children with disabilities in meetings concerning the IEP or in mediation proceedings? 4. What criteria must the non-lawyer advocate meet to be permitted to engage in activities that are considered in Opinion 56, to be the practice of law? 5. Is it in the public interest to permit non-lawyer advocates to engage in these activities that are considered, in Opinion 56, to be the practice of law? If so, why? 6. How can the public be protected from non-lawyer advocates who do not have adequate knowledge or training with respect to children with disabilities and their educational needs? Comments may be e-mailed to Comments.Mailbox@njcourts.gov by November 16, 2020. Anonymous comments will not be considered; comments should be accompanied by the commenter's name.
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Athina L. Cornell of Sciarrillo Cornell at firstname.lastname@example.org