Issued by Committee on the Unauthorized Practice of Law
September 30, 2020

COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW

Appointed by the Supreme Court of New Jersey

OPINION 56

Non-Lawyer Special Education
Consultants and the Unauthorized
Practice of Law

The Committee received a grievance regarding a non-lawyer who represents parents and

children in special education proceedings before the Office of Administrative Law. The

Committee issues this Opinion to provide guidance to non-lawyers who consult with parents of

children with special needs and/or represent them or their children in administrative hearings.

The Opinion specifies what activities are permissible and what activities are the unauthorized

practice of law. The Opinion also cautions lawyers who partner with non-lawyer consultants that

certain arrangements may be viewed as assisting in the unauthorized practice of law, and also

may violate ethics rules prohibiting improper fee-sharing.

The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA), is

designed to “ensure that all children with disabilities have available to them a free appropriate

public education that emphasizes special education and related services designed to meet their

unique needs and prepare them for further education, employment, and independent living.” 20

U.S.C. §§ 1400(d)(1)(A), 1412(a). In New Jersey, the requirements of the IDEA have been

incorporated in statute and in the Administrative Code. N.J.S.A. 18A:46-1 et seq.; N.J.A.C.

6A:14-1.1(b)(1); N.J.A.C. 6A:14-1.1 to -10.2.
Pursuant to the IDEA, the federal government provides assistance to States to identify

each child with a disability who may be eligible for special education and related services and to

provide a “free appropriate public education” for each eligible child. Under the IDEA, a “child

with a disability” is a child who has been evaluated as required by the federal statute and found

to have one or more of a list of disabilities: an intellectual disability, a hearing impairment

(including deafness), a speech or language impairment, a visual impairment (including

blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain

injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple

disabilities, and who, because of the disability, needs special education and related services. 20

U.S.C. § 1401(3); 34 C.F.R. § 300.8(a). The determination as to whether a child should be

classified as eligible for special education and related services is made by educators of the

child’s local school district, who conduct evaluations of the child upon notice to the child’s

parent and receipt of consent from the parent. 34 C.F.R. §§ 300.300, 300.304; 300.311.

For each classified child, an appropriate education must be tailored to the unique needs of

the child, for whom an “individualized education program” (IEP) is developed by the child’s IEP

team. The IEP team includes local school district educators, the child’s parent or guardian, and

others whom the parties believe will assist in the IEP development process. 20 U.S.C. §

1414(d)(1)(B). The team reviews the child’s present levels of functional and academic

performance and develops measurable goals for the child, including functional and academic

goals, to meet the child's needs that result from his or her disability. The objective is to enable

the child “to be involved in and make progress in the general education curriculum and to meet

each of the child's other educational needs that result from the child's disability.” 20 U.S.C. §

1414(d).

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To ensure that parents have adequate input into whether the IEP for their child is

appropriate, the IDEA requires the State to “establish and maintain procedures . . . to ensure that

children with disabilities and their parents are guaranteed procedural safeguards with respect to

the provision of a free appropriate public education” by State or local agencies that receive aid

under the IDEA. 20 U.S.C. § 1415(a). The State is required to offer an impartial due process

hearing on any complaint regarding the identification, evaluation, or educational placement of a

classified child or the provision of a “free appropriate public education” to such child. 20 U.S.C.

§ 1415(f). Any aggrieved party may appeal a decision of a local educational agency to the State

or a decision of a State agency in a civil action in State court or federal district court. 20 U.S.C.

§ 1415(g) and § 1415(i)(2)(A).

Significantly, the IDEA provides that any party to the administrative due process hearing

has “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.” 20 U.S.C. §

1415(h)(1). The New Jersey Supreme Court recognizes the role of non-lawyers in Court Rule

1:21-1(f) which provides that, subject to applicable limitations and procedural rules established

by the Office of Administrative Law, a non-lawyer may appear in a contested case before that

Office “to represent parents or children in special education proceedings, provided the non-

attorney has knowledge or training with respect to handicapped pupils and their educational

needs so as to enable the non-attorney to facilitate the presentation of the claims or defenses of

the parent or child.” R. 1:21-1(f)(8). The Court Rule further provides, however, that “[n]o

representation or assistance may be undertaken pursuant to subsection (f) by any disbarred or

suspended attorney or by any person who would otherwise receive a fee for such representation.”

R. 1:21-1(f).

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Accordingly, non-lawyers may represent parents or children with disabilities in Office of

Administrative Law contested special education cases provided they are qualified, submit an

application, and do not charge a fee for the representation. The Office of Administrative Law

regulations mirror these requirements. See N.J.A.C. 1:1-5.4(b)(4); N.J.A.C. 1:6A-5.1.

Specifically, a parent or child “may be represented by individuals with special knowledge or

training with respect to handicapped pupils and their educational needs.” N.J.A.C. 1:6A-5.1(a).

The non-lawyer who seeks to represent parents or children with disabilities in special education

proceedings must follow the procedures requiring an application for permission to appear.

N.J.A.C. 1:6A-5.1(b); N.J.A.C. 1:1-5.4(a)(7). The non-lawyer must submit a written Notice of

Appearance/Application. N.J.A.C. 1:1-5.4(b)(4). The Notice must include an “explanation

certifying how he or she has knowledge or training with respect to handicapped pupils and their

educational needs so as to facilitate the presentation of the claims or defenses of the parent or

child. The applicant shall describe his or her relevant education, work experience or other

qualifications.” N.J.A.C. 1:1-5.4(b)(4)(iv). The Notice also includes a certification stating that

the non-lawyer “is not receiving a fee for the appearance.” N.J.A.C. 1:1-5.4(b)(4)(vii). The

Notice must be signed by the applicant and be served on all parties. N.J.A.C. 1:1-5.4(b)(4)(viii).

At the Office of Administrative Law contested case hearing, the non-lawyer may submit

evidence, speak for the party, make oral arguments, and conduct direct and cross-examinations

of witnesses. N.J.A.C. 1:1-5.5(e). The non-lawyer may not, however, sign a consent order or

stipulation for a party. N.J.A.C. 1:1-5.5(f). A non-lawyer advocate in special education

proceedings is accorded an advocate-client privilege and work-product privilege. Woods v. New

Jersey Dep’t of Education, 858 F. Supp. 51 (D.N.J. 1993).

Special education is one of the fields of law where the Court permits non-lawyers to

represent and assist parties in Office of Administrative Law cases when such conduct would

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otherwise would be the unauthorized practice of law. R. 1:21-1(f)(8). If non-lawyers are

sufficiently qualified, make the required application, and do not charge a fee for the

representation, they are not engaging in the unauthorized practice of law.

Accordingly, it is not the unauthorized practice of law for a non-lawyer with special

knowledge or training with respect to children with disabilities and their educational needs to

represent parents or children before the Office of Administrative Law, including submitting

evidence, speaking for the party, making oral arguments, and conducting direct and cross-

examinations of witnesses. However, the non-lawyer must submit the required application and

no fee may be charged for these services. If no application is filed or a fee is charged for these

services, the non-lawyer is engaging in the unauthorized practice of law.

While non-lawyers with knowledge or training with respect to children with disabilities

and their educational needs are prohibited from charging fees for representation in the Office of

Administrative Law, they may charge fees for advising parents regarding educational problems,

evaluating such problems, the proper educational placement for children with disabilities, and

producing technical reports. Arons v. New Jersey State Bd. of Education, 842 F. 2d. 58, 60 (3d

Cir. 1988); Connors v. Mills, 34 F. Supp. 2d 795, 808 (N.D.N.Y. 1998). As the Third Circuit

noted, the non-lawyer’s role is “one of consultation, with emphasis on the responsibility to

identify educational problems, evaluate them, and determine proper educational placement.”

Arons, supra, 842 F. 2d at 62 (quoting Senate Report No. 168, 94th Cong., 1st Sess.). Non-

lawyers may serve as expert witnesses in administrative hearings before the Office of

Administrative Law and receive compensation for that service. While non-lawyers may charge

fees for their expert advice or expert testimony, they may not charge fees for representing the

parents in an administrative hearing in the Office of Administrative Law.

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Non-lawyers may also charge fees for accompanying parents at meetings with the child’s

school to develop the child’s IEP. In such meetings, however, the non-lawyer may not

“represent” the parents or speak on their behalf, but may attend and consult with the parents

regarding the development of the program and assist in the negotiations between the parents and

the school.1 Non-lawyers may accompany and consult with parents in mediation conferences

with the child’s school regarding the child’s IEP but, again, may not “represent” the parents or

speak on their behalf in such proceedings; representing a party in formal mediation is the

practice of law and may be done only by a lawyer. Non-lawyers who do not represent the party

may charge fees for attending administrative hearings in the Office of Administrative Law as a

consultant about educational needs and not to speak on behalf of the parents or to advise or

coach the parents regarding evidence, arguments, or direct and cross examination questions.

Lawyers who work with non-lawyer educational consultants and represent parents in

mediation sessions or administrative hearings in the Office of Administrative Law may not share

legal fees with the non-lawyer. The lawyer must be retained separately by the parents. If the

lawyer is retained not by the parents but by the consultant, the lawyer is assisting in the

unauthorized practice of law and may be impermissibly sharing legal fees. See Committee on

1
Ordinarily, negotiating a legal agreement on behalf of another person is the practice of law, and
negotiations with a school on an IEP may, arguably, fall into that category. There are, however,
many areas in which lawyers and non-lawyers can perform similar services, particularly when
the non-lawyers have a unique expertise in a field. “[I]n cases involving an overlap of
professional disciplines we must try to avoid arbitrary classifications and focus instead on the
public’s realistic need for protection and regulation.” In re Application of New Jersey Society of
CPAs, 102 N.J. 231, 237 (1986). The Committee finds that assisting parents of a child with a
disability in negotiations with the child’s school regarding the child’s IEP may be done by non-
lawyers who have the requisite special knowledge or training with respect to children with
disabilities and their educational needs, provided the parents are present and contributing to the
effort and the non-lawyer does not represent them or speak on their behalf.

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the Committee on the Unauthorized Practice of Law Joint Opinion 45 / ACPE Joint Opinion 716

(June 26, 2009) (lawyers who perform mortgage loan modification services in conjunction with a

for-profit loan modification company risk charges of impermissible fee sharing and assisting the

unauthorized practice of law); Committee on the Unauthorized Practice of Law Opinion 25

(1992) (a company that solicited homeowners to file property tax appeals, gathered necessary

paperwork, conducted comparative appraisals, and then arranged with an attorney to handle the

appeal before the County Tax Board was engaging in the unauthorized practice of law).

Accordingly, if an educational consultant is hired by the client, and the consultant then

retains the lawyer to handle the mediation or hearing, and the lawyer is paid out of fees received

by the consultant from the client, the consultant is engaged in the unauthorized practice of law

and the lawyer is assisting in unauthorized practice and also improperly sharing fees. The client

should separately choose legal counsel and may not be required to use counsel that is secured by,

or has a “partnering” arrangement with, the educational consultant.

In sum, non-lawyers with knowledge or training with respect to children with disabilities

and their educational needs may charge fees for consulting activities but may not charge fees for

representing the parents or children in formal mediation or administrative proceedings. They

may, however, charge fees for advising parents regarding educational problems, evaluating such

problems, the proper educational placement for children with disabilities, producing technical

reports, and serving as an expert witness. Lawyers may work with such non-lawyer educational

consultants but may not “partner” with the consultant or share legal fees with the consultant; the

lawyer must be hired by the parents separately from the consultant.