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A Tale of Two Advocates:
State Bar Issues New Decision on Unauthorized Practice of Law (UPL)

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The question of whether lay advocates can represent parents in special education due process hearings is being answered differently around the country.

The Individuals with Disabilities Education Act of 1997 and IDEA 2004 contain a "lay advocacy" statute as follows:

20 U.S.C. Section 1415(h) - SAFEGUARDS. Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g),shall be accorded

(1) 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; (emphasis added)

(2) the right to present evidence and confront,cross-examine,and compel the attendance of witnesses; . . .

(Wrightslaw: Special Education Law, page 72)

Under this provision, lay advocates have represented parents at special education due process hearings. Some school districts have complained to their State Bar Associations that these lay advocates are engaged in the Unauthorized Practice of Law (UPL).

In March 2004, the Florida State Bar instituted an investigation of advocate Lilliam Rangel-Diaz for the Unauthorized Practice of Law (UPL).

As the Florida State Bar explains, "The main purpose of UPL investigations and prosecutions is protection of the public from fraud and bad advice affecting legal rights." (See FL Bar UPL)

When the Florida State Bar finds that an individual is guilty of the unauthorized practice of law, an injunction is usually issued against that individual. If the person persists in the UPL misconduct, a contempt violation is issued and six months of jail can be expected. Many states have similar procedures and penalties.

Lilliam Rangel-Diaz is a nationally recognized advocate for children with disabilities. She has testified before Congress and wrote Special Education: Is IDEA Being Implemented as Congress Intended?. She testified before the President's Commission on Excellence in Special Education about the reauthorization of IDEA. Ms. Rangel-Diaz also served on The National Council On Disability (NCD).

Why
did the Florida State Bar investigate Lilliam Rangel-Diaz?

Attorneys for four Miami-Dade County school boards complained that Mrs. Rangel-Diaz's advocacy, which included representing parents in due process hearings, constituted the Unauthorized Practice of Law (UPL).

On March 7, 2005, the Florida Bar issued their decision in Lilliam Rangel-Diaz's case, as described in this news release:

* * * START HERE * * *

MIAMI, March 7, 2005 - The Florida Bar Unlicensed Practice of Law Committee 11A ("UPL Committee") issued its decision in the Unlicensed Practice of Law ("UPL") Investigation of Lilliam Rangel-Diaz of the Center for Education Advocacy, Inc., closing its file in the matter on January 12, 2005 and dismissing all UPL charges against Mrs. Rangel-Diaz.

Four Miami-Dade County School Board Attorneys had alleged in a complaint filed on March 8, 2004 that Mrs. Rangel-Diaz's attempts to act as a qualified representative in Exceptional Student Education ("ESE") due process hearings constituted UPL.

The UPL Committee found that Rule 6A-6.03311, Florida Administrative Code allows non-lawyer advocates to act as qualified representatives and to appear on behalf of clients in ESE hearings.

Non-lawyers special education advocates in Florida need to study the provisions found in Rule 28-106.106 and Rule 28-106.107, Florida Administrative Code which contain rules of qualification and standards of conduct.

This decision is of great value to students with disabilities and their families in Florida and to those who advocate for their rights in the highly complex system of special education due process that Florida has in place at this time. The federal government should further clarify how non-lawyer special education advocates should proceed to avoid UPL issues. Full text of News Release

CONTACT: Lilly Rangel-Diaz
Center for Education Advocacy, Inc.
5973 S.W. 42nd Terrace
Miami, Florida 33155
Phone: 786-253-3858
Fax: 305-666-4969
E-mail: Lillyrdiaz@bellsouth.net

* * * END HERE * * *

Delaware Advocate Found Guilty of Unauthorized Practice of Law

Lay advocate Marilyn Arons had a different outcome when her case was heard by the Delaware Supreme Court. (See Delaware Supreme Court Issues Decision in Arons Case.)

In July 2000, the Supreme Court of Delaware ruled that Marilyn Arons was guilty of the "unauthorized practice of law" when she represented parents in special education due process hearings. Decision in Arons case.

The statutes in some states allow parents to be represented by lay advocates.

We hope the conflicting rulings in Arons (Delaware) and Rangel-Diaz (Florida) will cause the U. S. Department of Education to clarify how non-lawyer special education advocates can proceed so they may avoid UPL charges.


Wrightslaw: Special Education Law

The Individuals with Disabilities Education Improvement Act of 2004: Overview, Explanation and Comparison of IDEA 2004 & IDEA 97 by Peter W. D. Wright, Esq.

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Last revised: 01/26/12

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