Untitled California Attorney General Opinion
14-101
| Cal. Att'y Gen. | Sep 28, 2017Background
- The California Office of Administrative Hearings (OAH) conducts administrative adjudications, including special education mediations and due process hearings under contract with the Department of Education.
- The question presented: whether (1) the Administrative Procedure Act (APA) authorizes parties in OAH proceedings to be represented by non‑members of the California State Bar, and (2) whether IDEA (20 U.S.C. § 1415(h)(1)), its federal regulations, or Cal. Ed. Code § 56505(e)(1) authorize nonlawyer representation in special education due process hearings.
- The State Bar Act generally prohibits the practice of law by non‑members; courts have recognized limited legislative or agency exceptions for lay representation in selected administrative forums.
- Chapter 5 (formal) APA proceedings resemble civil trials and include a statutorily prescribed notice of hearing listing the right to counsel but not a right to lay representation.
- Federal IDEA grants parties a right to be “accompanied and advised by counsel and by individuals with special knowledge or training,” but the U.S. Dept. of Education’s 2008 regulation clarified that states determine whether non‑attorneys may represent parties at due process hearings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the APA itself authorizes nonlawyer representation in OAH proceedings | APA permits parties to choose lay representatives; APA provisions implicitly recognizing nonlawyer actions show authorization | APA is silent on a right to lay representation; State Bar Act forbids unlicensed practice of law unless statute or rule authorizes it; agency discretion varies and Chapter 5 gives no such discretion | APA does not itself authorize representation by non‑California‑Bar members; where Chapter 5 applies, lay representation is not authorized |
| Whether IDEA, its regs, or Cal. Ed. Code §56505(e)(1) authorize nonlawyer legal representation in special education due process hearings | IDEA’s language permitting accompaniment and advice by ‘‘individuals with special knowledge’’ authorizes lay advocates to represent parties | Federal regs (2008) leave representation by non‑attorneys to state law; California has not enacted statutes or rules authorizing lay persons to represent parties in due process hearings | Neither 20 U.S.C. §1415(h)(1), its implementing regs, nor Cal. Ed. Code §56505(e)(1) authorize non‑attorney representation of parties’ legal interests in due process hearings; lay advisers may assist but may not practice law |
Key Cases Cited
- Baron v. City of Los Angeles, 2 Cal.3d 535 (1970) (discusses practice‑of‑law character and scope of representation in adjudicative settings)
- Eagle Indem. Co. v. Industrial Acc. Commission, 217 Cal. 244 (1933) (upholds legislative authorization for lay representation in workers’ compensation administrative proceedings)
- Consumers Lobby Against Monopolies v. Pub. Util. Com., 25 Cal.3d 891 (1979) (recognizes agency authority to permit nonlawyer representation in adjudicatory proceedings)
- Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119 (1998) (addresses bounds of practicing law and prohibition on unlicensed practice)