UPL Opinions 56 and 57
On September 30, 2020, New Jersey’s Supreme Court Committee on the Unauthorized Practice of Law issued Opinion 56 on “Non-Lawyer Special Education Consultants and the Unauthorized Practice of Law.” Of note, the Committee restricted the participation of non-attorney advocates at Individualized Education Program (IEP) meetings and mediation conferences, saying those advocates may not “represent” parents or “speak on their behalf.”
In response to written objections by ELC, the Committee issued a Notice dated October 14, 2020 that suspended Opinion 56 and asked for public comment on the issues raised by Opinion 56, setting a deadline of November 16, 2020.
By report, hundreds of comments were submitted to the Committee by advocacy organizations, parents, non-attorney advocates, and lawyers in opposition to the restrictions imposed by Opinion 56. Among the organizational comments were those submitted by: Education Law Center; the Council of Parent Attorneys and Advocates; Court-Appointed Special Advocates of New Jersey; Disability Rights Education and Defense Fund; Disability Rights New Jersey; National Association of the Deaf; National Disability Rights Network; New Jersey Education Association; Professors of Legal Ethics, Poverty Law & Disability; SPAN Parent Advocacy Network; The Arc; and Volunteer Lawyers for Justice.
In a Notice to the Bar dated April 14, 2021, the Committee published Opinion 57 - Non-Lawyer Special Education Advocates and the Unauthorized Practice of Law - Superseding Opinion 56. Under Opinion 57, “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 parents and children” at IEP meetings and formal mediation conferences under the Individuals with Disabilities Education Act (IDEA).
The Committee declined to “draw lines based on the content or focus of the consultant’s or advocate’s communications” or to require non-lawyer advocates to obtain a certification, noting that there “currently is no governmental licensing or certification program.” Under NJ’s IDEA regulations (N.J.A.C. 6A:14-2.3(k)(2)(vii)(1)), it is up to the parent or school district inviting an individual to an IEP to determine whether they possess “special knowledge or expertise.”
Among the specific rulings made by the Committee, non-attorney advocates may:
- advise, represent, and/or speak on behalf of parents and children at IEP meetings;
- do the same at formal mediation conferences, but may not appear at mediation when the parent or guardian is absent;
- appear at IEP meetings in the absence of the parent only “with explicit authorization and consent from the parent,” unless they are a court-appointed special advocate volunteer for whom that authorization is not required; and
- speak on behalf of parents in less formal settings, “such as to relay or obtain information.”
Despite arguments made to the contrary, the Committee found that non-lawyer advocates are engaging in the practice of law when discussing “the child’s legal rights or the legal obligations of the school district.” However, the Committee nonetheless authorized this activity, finding it to be in the public interest for a host of reasons, including intimidation of, or lack of technical knowledge by, parents, the shortage of pro bono attorneys, and the lack of demonstrable harm to the public.
ELC would have liked to see the Committee go further by finding that the participation of non-attorney advocates in special education meetings and mediations is not the practice of law at all. But the Committee's recognition that this participation serves the public interest and must be allowed to continue is an important victory for students and parents who need help navigating the special education system. The significant change in the Committee's position between Opinion 56 and Opinion 57 is a testament to the many parents and others who spoke up on behalf of students, and the importance of soliciting public comment on issues of broad impact.