Earlier this month, the state Supreme Court Committee on the Unauthorized Practice of Law modified an earlier opinion regarding nonlawyers who represent parents and children in special education proceedings before the Office of Administrative Law (OAL). Opinion 57 supersedes an opinion stating that nonlawyers with knowledge or training with respect to children with disabilities and their educational needs “may advise, represent and/or speak on behalf of parents and children at meetings with the child’s school to develop the child’s IEP and at formal mediations should the parties be unable to agree to the IEP.”
The committee further outlined the requirements of nonlawyers who represent parents or children with disabilities in OAL-contested special education cases. They must be qualified, submit an application, and not charge a fee for the representation. While the committee noted there is no certification process for such advocates, the written “Notice of Appearance/Application” must include an explanation certifying how the representative has knowledge or training with respect to handicapped pupils and their educational needs, and include relevant education, work experience or other qualifications.
The committee responded to a grievance regarding a nonlawyer who represents parents and children in special education proceedings before the OAL. In its initial response, Opinion 56, dated Sept. 30, 2020, precluded nonlawyers from representing parents or children in formal mediation and administrative proceedings, but permitted them to “advis[e] parents regarding educational problems, evaluating such problems, the proper educational placement for children with disabilities, producing technical reports, and serving as an expert witness.” The opinion was stayed, and the committee solicited comments, which resulted in the superseding opinion.
Analyzing whether the activity is the practice of law and whether it is in the public interest to permit nonlawyers to engage in the activity, the committee acknowledged that many aspects of the advocates’ representation constitute the practice of law (i.e., representing parents in meetings and mediations). However, the committee further opined that the public interest is served by advocates who are better versed in the “technical jargon being used”; familiar with educational standards; can bridge language barriers; and even represent parents who may, themselves, have intellectual or developmental disabilities, as they are often genetic.
“The Committee finds that there is little doubt that parents often need advocates, lawyer or nonlawyers, at such meetings,” the committee opined. The committee further opined that an advocate may appear at an IEP meeting with or without a parent or guardian, as long as there is explicit authorization to do so.
A copy of Opinion 57 is available at njcourts.com.
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