A Non-lawyer May Not Engage in the Practice of Law in Special Education Due Process Hearings

Category: Education Matters
Date: Oct 31, 2017 04:43 PM

Parties to proceedings conducted by the California Office of Administrative Hearings sometimes seek to be represented by a person who is not a lawyer.  The Office of Administrative Hearings (OAH) hears administrative disputes under the Administrative Procedures Act (APA).  Among its duties under the APA, OAH provides mediators and administrative law judges from its Special Education Division to conduct proceedings related to special education disputes.  Accordingly, the Attorney General’s Office issued an opinion on September 28, 2017 regarding whether the APA or the Individuals with Disabilities Education Act (IDEA) authorize representation by a non-lawyer. 

Under the State Bar Act, it is unlawful to practice law in California unless one is a member of the California State Bar or is otherwise authorized by statute or court rule to engage in the practice of law.  While courts are careful to guard their constitutional prerogative to determine the qualifications of those who may practice before them, they have generally deferred to the discretion of the Legislature or the executive branch where administrative adjudications are concerned. 

The Attorney General’s Office first concluded that the APA does not authorize lay representation of parties in administrative hearings.  The APA states that a party has the right to be represented by an attorney at his own expense, to be appointed an attorney at public expense, or to represent him or herself without legal counsel.  There is no reference to a party’s right to be represented by someone other than an attorney.  In other administrative proceedings (where formal procedures are not required), the availability of lay representation is left to the discretion of the administrative agency.

The Attorney General found that because the Legislature has expressly authorized lay representation of parties in other statutes, the absence of such authorization in the APA is significant.  In light of the strong public protection policy expressed by the State Bar Act, the Attorney General concluded he is not free to insert an unspoken exception to the prohibition against the unlicensed practice of law.

The Opinion then went on to address the IDEA.  The IDEA allows a party to make a complaint relating to “the identification, evaluation, or educational placement” of a child with disabilities, or to “the provision of a free appropriate public education” for the child through a due process hearing.  Under state law, in a due process hearing, parties have a 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.” 

The Attorney General’s Office concluded that the IDEA does not create an entitlement to lay representation in a due process hearing (which is distinct from the right to be accompanied or advised by a non-lawyer).  It noted that the U.S. Department of Education considered the question previously and concluded that Congress likely had intended to leave the issue of lay representation to the States.  The applicable federal regulation states, “[W]hether parties have the right to be represented by non-attorneys at due process hearings is determined under State law.”  Likewise, California law implementing the IDEA has not adopted any rule or statute to enable lay representation in special education proceedings.  Therefore, the Attorney General’s Office concluded that there is no entitlement to lay representation in special education due process hearings.

Consultants and other lay advocates are not, however, barred from due process hearings.  The Education Code clearly states that a party may be accompanied and advised by them, but the Attorney General’s Office has now made it clear that they may not have their legal interests represented by a non-lawyer.

__ Ops.Cal.Atty.Gen. __ (Sept. 28, 2017).

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