On July 6 2000, the Delaware Supreme Court upheld a finding that lay advocates who represent parents in Delaware special education due process hearings are engaged in the unauthorized practice of law (UPL).
According to the July 6 decision by the Court:
"On August 8, 1996, the Office of Disciplinary Counsel ('ODC') filed a petition with the Board requesting that Arons, Watson and the Parent Information Center be declared to have engaged in activities constituting the unauthorized practice of law by representing families of children with disabilities in due process hearings."
the representation of at least five such families in Delaware due process
hearings, Appellants denied that their activities, even if amounting
to the practice of law, constitute the unauthorized practice of law.
They argued that section 1415(h)(1) of the IDEA permits the representations
in which they have engaged and preempts any state-law proscription against
the unauthorized practice of law that might otherwise apply. That section
provides that any party to a due process hearing 'shall be accorded
. . . 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.' They also claimed that Delaware is alone among the
fifty states in precluding non-lawyer representation in these circumstances."
"If it could be demonstrated that an unmet need exists and that the local bar could not adequately respond, this Court would consider the adoption of a rule allowing lay representation in a certain limited class of cases . . . At present, however, such a need has not been demonstrated."
Although this case applies only to advocacy representation in Delaware, it's impossible to predict if its impact will be limited to Delaware. We do not expect the Arons case to have an adverse impact in Virginia because the Code of Virginia, Section 22.1-214(C) states that:
"The parents and the school division shall have the right to be represented by legal counsel or other representative before such hearing officer without being in violation of the provisions of § 54.1-3904 (the unauthorized practice of law section of the Virginia Code).
Note from Wrightslaw
Other states may have similar language in their statutes, regulations, or in opinions issued by their Attorney Generals. If you know your state's position and have specific legal authority, statute, regulation, legal opinion, or other authority, please send the information by email to: UPL@wrightslaw.com
Check your state statutes, regulations, and AG opinions. If your state laws or regs need to change to permit representation by lay advocates, you need to educate your legislators about these issues.
We are indebted to the Council of Parents Attorneys and Advocates listserve for staying on top of this case. David C. Vladeck, counsel for Arons, spoke at the last COPAA conference in Houston, and gave the inside story of this case as it was unfolding.
If you are an advocate
or attorney who assists or represents children with disabilities,
you need to join COPAA! For membership information, go to the