On April 14, in response to extensive public comments, the New Jersey Supreme Court Committee on the Unauthorized Practice of Law published Opinion 57 superseding its prior controversial ruling (Opinion 56) restricting the role of non-lawyer advocates relied on by parents and students in special education conferences.
Education Law Center, working with the Council of Parent Attorneys and Advocates, spearheaded the campaign for the Supreme Court Committee to revisit Opinion 56. The campaign included filing a formal request noting the severe negative impact of the original opinion on students with disabilities and their families, who had relied on non-lawyer advocates for more than 30 years.
Opinion 57 makes it clear 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 parents and children” at Individualized Education Program (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, it is up to the parent or school district inviting an individual to an IEP meeting 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 by ELC and others, the Supreme Court 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.
“We wanted the Committee to 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,” said ELC Senior Attorney Elizabeth Athos. “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 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,” Ms. Athos added.
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