Friday, March 2, 2007

Can Parents Represent Child in IDEA case?

Can parents represent their child in a case under the Individuals with Disabilities in Education Act? Or is that practicing law without a license? The Supreme Court will decide. The 6th Circuit held that non-lawyers may not represent other parties pro se in court; the parents may represent their children in administrative proceedings. Supreme Court hears arguments in autistic child legal representation case, Feb. 27, 2007.

See Winkelman: Scalia frets over pro se burden on courts, Shlep: The Self-Help Law ExPress, Feb. 28, 2007.

This reminds me of one of the (many) interesting chapters in Legal Ethics Stories (KF306.A4 L43 2006 at Reference Area): "In re Arons: the plight of the 'unrich' in obtaining legal services, by David C. Vladeck. A working paper version of the chapter is on SSRN for download. Prof. Vladeck begins:

Marilyn Arons is nobody’s fool. Tall, with piercing blue eyes and a measured, powerful voice, she is an imposing presence in a courtroom. She is a riveting speaker. Her arguments are not simply lucid; they are forceful, well-reasoned, and almost always irresistible. She is in total command. It is no surprise that she wins most of her cases. And it is no surprise that for twenty-five years she has struck fear in the hearts of her adversaries — lawyers for school boards in New Jersey, Pennsylvania, New York, and, for a brief period, Delaware. Her clients — disabled children and their families — revere her. More than any other advocate, she has shaped the law governing the educational rights of disabled children. What makes this story even more remarkable is that Marilyn Arons is not a lawyer.
Special ed can be expensive, so schools don't always provide what a child needs without some pressure. IDEA sets up an administrative procedure to resolve disputes between families and school districts.
At IDEA hearings involving significant issues, like the placement of the child in a private school, the school boards and the states are represented by counsel. Rarely can parents find or afford lawyers. Anticipating this disparity, IDEA says that parents may be "accompanied and advised" in these proceedings "by counsel and by individuals with special knowledge and training with respect to children with disabilities. Mrs. Arons is an individual with special knowledge and training, with a record of success in due process hearings in many jurisdictions."
She helped families in New York, New Jersey, and Pennsylvania navigate the system, but when she started handling hearings in Delaware, the bar prosecuted her for unauthorized practice of law (UPL). And the Delaware Supreme Court agreed. In re Arons, 756 A.2d 867, Delaware courts link (Del. 2000).

It's quite a gripping -- and disturbing -- story about the barriers to access to justice.

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