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The Delaware Supreme Court came out firing during oral arguments May 23, peppering counsel on a question of how to protect the rights of parents seeking individualized instructional programs for their disabled children. The question before the court essentially was this: Should parents be allowed to rely on special-education advocates who aren’t lawyers during state Education Department hearings, or should this lay representation, unregulated as it is, be banned as the unauthorized practice of law? Whatever the answer, it is the heart of a four-year-old case, In the Matter of Arons, which arose out of the appearance of special-education advocates Marilyn Arons, Ruth Watson and their Parent Information Center of New Jersey on behalf of five Delaware parents with disabled children. There is, however, another underlying strain here: the challenge the special-education advocates posed to the Delaware legal establishment — or what Arons once characterized as a “lawyer monopoly.” The five justices sat en banc for the case. Arguing for the advocates was David C. Vladeck, a Georgetown University law professor. Arguing the advocates should be prevented from the unauthorized practice of law was Michael S. McGinniss of the Office of Disciplinary Counsel. The case came to the Supreme Court after the Board on the Unauthorized Practice of Law sided with disciplinary counsel and recommended Sept. 24 that Arons and Watson be ordered to stop. The court has the final say. Arons and Watson aren’t currently active in Delaware. Still, there is no dispute that for a time they acted like lawyers, advocating at hearings for parents by giving opening statements, examining and cross-examining witnesses, submitting briefs and arguing for remedies. Nor is there a dispute that they were so good at it, they won every time. Vladeck contended his clients had every right to do what they did because of a federal statute known as IDEA — the Individuals with Disabilities Education Act — which provides parents with the right to be “accompanied and advised” by special-education experts. McGinniss disagreed. He said the state has an interest in protecting parents from non-lawyers because there is no guarantee of their professionalism and no recourse for incompetent or unethical conduct. He also noted it is the Delaware Supreme Court’s right to regulate the legal practice here, a prerogative not to be trumped by a federal statute like IDEA. At oral arguments May 23, Vladeck barely had begun to state his case when the justices’ questioning began. Only Justice Maurice A. Harnett III didn’t join in. Chief Justice E. Norman Veasey started it, asking Vladeck why Congress provides in IDEA only that parents are entitled to be “accompanied and advised” by special-education experts, instead of specifying the parents may be “represented.” Such language does exist in other federal statutes, like the Social Security Act, which says applicants may be “represented by an authorized representative, such as legal counsel, relative, friend or other spokesman.” “Beats me,” Vladeck said. “If it did, we wouldn’t be here today.” Vladeck argued the federal statute was designed to rectify exactly the situation the Delaware parents encountered. In all the instances, the parents were unable to find legal representation — not for a fee, reduced cost or pro bono — and would have been too intimidated on their own to attend the hearings, where the state Education Department and local school districts are represented by counsel. “Enforcement of state law would frustrate federal objectives,” Vladeck said. Justice Randy J. Holland asked Vladeck to name the leading cases supporting his interpretation of IDEA, but Vladeck said there were none — because Delaware is the only state not permitting this type of lay advocacy. When McGinniss had his turn, he argued the court should accept the recommendation from the Board on the Unauthorized Practice of Law because the panel’s reading of IDEA was correct. “Congress stopped short of mandating a right to lay representation,” he said. McGinniss also said there was an important public-policy concern at stake in curtailing the unauthorized practice of law, where there is no guarantee of the advocates’ professionalism and no disciplinary procedures to sanction them. “There is no recourse for a parent who has trusted a lay representative,” he said. Justices Joseph T. Walsh and Carolyn Berger asked both sides whether it would be appropriate to craft a new rule to allow this specialized advocacy, and it was here that there seemed to be a basis for common ground. “The ODC [Office of Disciplinary Counsel] has no objection in principle to the adoption of such a rule,” McGinniss said, although he cautioned, “In the interest of public policy, it would have to have very high standards.” Vladeck said something has to be done, or else the state would be shortchanging the parents. “You still have an intractable due-process problem,” he said.

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