Braille Monitor                         February 2021

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Limitations for Non-Attorney Advocates in Special Education Matters

by Valerie Yingling

Valerie YinglingFrom the Editor: Valerie is a paralegal who plays an invaluable role in our organization by researching and coordinating much of our legal activity. In this article she deals with the crucial roles of advocates and what qualifications they must have to serve in this way. Here is what she says:

The National Federation of the Blind has built a strong network of members and advocates across all fifty states, the District of Columbia, and Puerto Rico, and we collectively work to remove barriers and raise the expectations of blind people. Our members are not all practicing attorneys, and yet we have created systemic and individualized change at the federal, state, and local levels. Advocacy is a critical tool in the work we do, but a recent opinion from the New Jersey Supreme Court Committee on the Unauthorized Practice of Law reminds us that the roles of non-attorney advocates can be fettered, and that the NFB needs to be a part of the conversations that define any limitations on non-attorney advocates.

Last September, the New Jersey Supreme Court Committee on the Unauthorized Practice of Law (the Committee) issued its Opinion 56 (https://www.njcourts.gov/notices/2020/ n200930c.pdf?c=Zi9), which defines permissible activities for non-attorneys who support parents of children with special needs and also defines which activities are considered unauthorized practice of law. Most notably, the Opinion restricts non-attorneys from representing families in meetings and due process hearings, though permits non-attorneys to consult with families or provide expert testimony, for example. The distinction is important in the context of the Individuals with Disabilities Education Act (IDEA) provision that parents of students with disabilities have the right at due process hearings “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).

After issuing the Opinion, the Committee received public comments from interested parties, including the National Federation of the Blind, and the Opinion was stayed. In our comments, NFB’s general counsel Scott LaBarre stressed the critical role of non-attorney advocates who support, and in some cases represent, the families of blind children. The NFB’s comments are copied below; they are only part of an ongoing conversation. The NFB will remain a party to the conversation regarding non-attorney advocates and the unauthorized practice of law and will continue to critically evaluate proposed restrictions on you—our members with special knowledge or training who mentor, support, and advocate for others.

The National Federation of the Blind’s Comments to the New Jersey Supreme Court Committee on the Unauthorized Practice of Law

November 16, 2020

Greetings Committee:

I write to you today as General Counsel of the National Federation of the Blind (NFB) and wish to give you our perspective regarding stayed Opinion 56 which addresses the role of non-attorney advocates representing parents and children navigating various aspects of the quasi legal system established by the Individuals with Disability Education Act (IDEA). I use the term “quasi” because we believe that parts of the system created by IDEA really should not be viewed as formal legal proceedings.

Founded on this day in 1940, the NFB is the oldest and largest organization of blind and low vision persons in the United States with fifty-two state affiliates and several hundred local chapters. Additionally, we have several special interest divisions within the Federation, one of which is our National Organization of Parents of Blind Children. Thus, it almost goes without saying that we are extremely concerned with how parents and blind students can navigate their way through the often complex special education system established by IDEA.

Over the decades, we have helped represent thousands of parents through the educational system. At times, that takes the form of direct legal representation where we help parents secure the services of attorneys. However, even more frequently, our members, usually a volunteer leader at some level, help represent parents and their children at IEP meetings and other proceedings. The Federation does not charge families for this form of advocacy.

Blindness is a low incidence disability, and it is often difficult to acquire meaningful knowledge and information about the alternative techniques and methods the blind use to navigate successfully the educational system. Moreover, the misunderstandings and stereotypes about blindness have created low expectations for all blind people including our youth. Consequently, our advocates serve as important role models to these families and for teachers. Many of our volunteer leaders not only have direct educational experience with the special education system, they have trained themselves on the provisions of IDEA and its corresponding regulatory scheme.

Thus, we believe it would be quite harmful if non-attorney advocates were not permitted to represent parents and help them through the IEP process in particular. On this point, we do not regard IEP meetings as formal legal proceedings. It is critical that parents of blind children be able to rely on advocates like the ones we provide because in almost every case, there are four or five times the number of school representatives at an IEP meeting as the parents. Moreover, the parents usually do not have the same experience with the educational system as the school officials.

Our experience also tells us that a very high percentage of the affected families do not have the financial resources necessary to hire legal counsel. Thus, these non-attorney advocates play a critical role in leveling the playing field.

With respect to mediations and other hearings, we do not have a strong opinion on the role of non-attorney advocates. However, we do believe that many such advocates are capable of helping to represent parents and their children competently. It is likely best practice to have such activities supervised by a licensed attorney.

We thank you for the opportunity to provide some perspective on these important issues. Please do not hesitate to contact us if we can be of further assistance.

Respectfully,
Scott C. LaBarre, Esq.
General Counsel, NFB

In conclusion, we continue to monitor Opinion 56. At the time of writing this article, the Opinion had not been revised or revoked, but remains stayed.

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