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If some special education activists want to continue advocating for parents of disabled children, the Delaware Supreme Court is going to insist they go to law school first. The state’s highest court decided that Marilyn Arons and Ruth Watson of the Parent Information Center of New Jersey engaged in the unauthorized practice of law when they appeared on behalf of five Delaware families during federally mandated hearings about instructional programs. With all five justices sitting en banc, the court affirmed a decision from its Board on the Unauthorized Practice of Law in a July 6 opinion written by Justice Joseph T. Walsh. Surprisingly, the 20-page opinion represents the first time the court has exercised its full powers of review in a UPL matter since the board was created in 1991. The court went so far as to hold oral arguments, which occurred in May. Typically, UPL cases are handled through affidavits of voluntary compliance, with the court issuing orders to approve them. The court also used an order to affirm the board May 31 in another significant UPL case, requiring lawyers to participate in real estate settlements. Notwithstanding such a substantive review, the court’s opinion may not be the last word in this case, In the Matter of Marilyn Arons, et al., which already has lasted for four years. David C. Vladeck, a Georgetown University law professor who represented the special education advocates, said he is exploring various avenues to keep the cause alive, both inside and outside the courtroom. “It’s certainly not the end of the road,” h” said. The case was brought in 1996 by the Office of Disciplinary Counsel, which handles UPL matters, after Arons and Watson attended proceedings, formally known as “due process hearings,” which are held by the state Education Department if parents of special-education students believe their children aren’t getting proper instruction. The hearings are required by a federal law, the Individuals with Disabilities Education Act, known by the shorthand IDEA. The hearings are legalistic in nature. Arons and Watson acknowledged they performed many lawyer-like functions, such as making statements, doing direct and cross-examinations, raising objections, and submitting briefs and other documents. They also won every time. The special education advocates argued they did nothing wrong because IDEA provides parents “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.” They also said Delaware was the only state not allowing non-lawyers to represent parents. Their position received a boost from the U.S. Justice Department, which filed a brief as amicus curiae . The Office of Disciplinary Counsel argued Arons and Watson were engaging in the unauthorized practice of law and should be stopped, because the state has a compelling interest to protect the public from non-lawyer representation, outweighing any potential benefit from lay advocates, no matter how competent. Disciplinary Counsel Michael S. McGinniss, who argued the case, presented a contrary interpretation of IDEA. He said the federal statute provided for parents to be “accompanied and advised” by special education advocates, but not “represented” by them as the term is applied to counsel. McGinniss also said federal law couldn’t trump the state’s prerogative to regulate the practice of law. The court sided with the Office of Disciplinary Counsel — but not resoundingly. The justices took a look at the IDEA language, noted that each party found it unambiguous in its intent and then concluded otherwise. “We do not share the parties’ vision of clarity. In our view [IDEA] is ambiguous to the extent it appears to confer joint authority on lawyers and non-lawyers to accompany and advise parents and others affected by the operation of the due process hearings provided under the IDEA. That being said, however, case law as well as statutory history support the ODC’s interpretation,” the court said. “The language of [IDEA] cannot be interpreted as granting any clear right to lay representation. This conclusion renders moot [Arons'] claim that the IDEA pre-empts any state-law proscription against the unauthorized practice of law. … Accordingly, we affirm the decision of the board.” The court said it could make an exception, agreeing to adopt a rule allowing limited lay representation — but only if the special education advocates could show, as in the case of the five families they aided, that the parents were unable to find legal counsel on a reduced-cost or pro bono basis. The Office of Disciplinary Counsel would like to think the matter is settled. “We’re very pleased with the result,” McGinniss said. Vladeck, however, wasn’t anywhere near ready to give up the fight. He said he had three options to pursue. One would be to seek a rule change permitting lay representation. “We have indications from the court it would be receptively reviewed,” he said. Another possibility, Vladeck said, would be an appeal to the U.S. Supreme Court, particularly if the federal Justice Department continued to provide support as it did with its amicus brief. A third choice would be action seeking to withdraw federal disability funding from the state, based on noncompliance with IDEA, he said. “I think the court’s reading of the statute is fundamentally wrong,” Vladeck said.

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