Last fall, the role of non-attorney advocates in special education advocacy came under fire when the New Jersey Supreme Court issued “Opinion 56.” The 10-page opinion would have made it more difficult for advocates who are not lawyers to help parents of special education students in Individualized Educational Programs (IEP) meetings and mediation conferences. Opinion 56 states it would be unethical for non-lawyer advocates to “represent” students or “speak on their behalf” in IEP meetings and mediation conferences. Issued in response to a single confidential grievance filed by an unknown party, Opinion 56 found that some of the work of non-attorney advocates constitutes “the unauthorized practice of law.”
On April 9, the New Jersey Supreme Court Committee on the Unauthorized Practice of Law issued Opinion 57, superseding Opinion 56. As a result of robust advocacy efforts initiated by the Newark-based Education Law Center, the Court reversed Opinion 56, and agreed that “non-lawyers with knowledge or training with respect to children with disabilities and their educational needs may advise, represent and/or speak on behalf of parent and children at meetings with the child’s school to develop the IEP, and at formal mediation should the parties be unable to agree to the IEP.”
The Opinion states that while this is, in fact, “the practice of law,” it is not the “unauthorized practice of law” when the non-lawyer has the requisite knowledge or training.
The Court wrote that it was “guided by its determination of the public interest by the numerous comments received from parents, consultant, school administrators, teachers, nonprofit organizations and institutions.”
Special education is one of the few areas of law where non-lawyers are permitted to represent and assist parties. The federal law, IDEA, specifically allows parents the right to be accompanied and advised by a lawyer and also by “individuals with special knowledge or training with respect to the problems of children with disabilities.” 20 U.S.C. § 1415(h)(1).
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