The Unauthorized Practice of Law

Provided for: Region 5 PTAC May, 2013

Presented by: Courtney Salzer, Esq. Region 4 PTAC at WI FACETS

2005, 2011, 2013 WI FACETS & Courtney Salzer. All Rights Reserved. This presentation, in whole or in part, may not be reproduced or transmitted in any form, or by any means whatsoever without the prior written permission of WI FACETS & Courtney Salzer.

Learning Objectives of Todays Workshop

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Raise awareness regarding the significance of the unauthorized practice (UPL) among non-attorney parent/family advocates. Explore the various legal definitions/viewpoints concerning UPL. Provide practical strategies to help non-attorney advocates support families without engaging in UPL.

The So What
Providing support to families as they navigate the maze of special education laws and regulations includes providing information and assistance with the law. You will need to do this without assuming the role of an attorney. Sounds easy, right?

Parent Center Survey

The families I serve need legal assistance or have questions that call for legal advice: 19% Very often 24% Often 55% Sometimes If families cannot afford to hire an attorney, what do they do when they have a legal issue? 43% Ask you for legal advice Has the lack of free or discounted legal services ever caused you to compromise and give legal advice? 30% Not sure because I dont know what constitutes legal advice 14% Yes, occasionally 2% Yes, on a regular basis

In the Matter of Arons

Background: Prompted by complaints from school boards, the Delaware Office of Disciplinary Counsel filed a petition with the Board requesting that Marilyn Arons, Ruth Watson and their parent center be declared to have engaged in activities constituting the unauthorized practice of law by representing families of children with disabilities in due process hearings. Holding of the case: The Delaware Supreme Court upheld a finding that lay advocates who represent parents in Delaware special education due process hearings are engaged in the unauthorized practice of law. *** IDEA provides no additional protection and instead leaves the decision as to whether lay persons can represent parents at due process hearings up to each individual state to decide.

Defining the Practice of Law

Quite Simply
The unauthorized practice of law = practicing law without being licensed to do so in that state. What then constitutes the practice of law?

Divergent definitions
5 Court Tests Have Emerged Over the Years
1. 2. 3. 4. 5.

Affecting Legal Rights Test Commonly Understood Test Client Reliance Test Attorney-Client Relationship Test Application of Law to the Facts Test

The Affecting Legal Rights Test

Under this test, if you are providing services that
affect another persons legal rights, you are engaging in the practice of law.

This is an extremely broad test that encompasses a

variety of behaviors and actions. Eg. Drafting a contract

Commonly Understood Test

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Practice of law is comprised of activities that lawyers have traditionally performed.

This test makes no distinction between litigation

and court-related activities and activities that involve giving legal advice and drafting legal documents

Client-Reliance Test
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Under this test, a person is practicing law if others believe that the person is engaged in the traditional role of giving legal advice

Does the client believe that he/she is receiving legal services?

Attorney-Client Relationship Test

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A personal relationship must exist between the support person and the individual that is comparable to that of an attorney and client.

What the courts will look for: - did you guarantee confidentiality similar to the attorney/ client privilege? - did you charge for your services? - did you represent or make decisions for the other person?

Application of Law to Facts Test

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Relating the general body of legal knowledge to the facts of a particular case or to the specific legal problems of a person and then based on that analysis, dictating a specific outcome or course of action.

Presumably, under this test, merely stating what the law is on a particular topic should not constitute the unauthorized practice of law.

Eg. Law: A manifestation determination is done when there is a change of placement for a student with a disability. The concept behind this is that a child should not be punished for conduct that was caused by their disability. If the students behavior is determined to be a manifestation of the childs disability, the child must be returned to the placement from which the child was removed. This is perfectly fine. Application: Clearly, your child throwing a chair at the principal was a manifestation of his disability so you shouldnt worry about him being expelled. This is where the line has been crossed.

A Helpful Case
3. Oregon State Bar v. Smith, 942 P.2d 793 (1997): Most significantly, for present purposes, the practice of law means the exercise of professional judgment in applying legal principles to address another person's individualized needs through analysis, advice, or other assistance. Examples of activities constituting practice of law: * Informing people about their legal rights; * Advising people to file a lawsuit; * Recommending a particular lawyer; * Hiring a lawyer to assist union members; * Employing a nonlawyer to gather evidence for trials; * Consultation, explanation, recommendation, or advice; * Meeting with people to discuss individual facts and circumstances relating to need for forms, services, assistance; * Obtaining information in any manner related to individual facts and circumstances; * Advising people on eligibility or advisability of legal remedies; * Advising people on court system or process; * Assisting people in selecting forms, pleadings, documents; * Assisting people in using forms, pleadings, documents.

Your States Take on UPL

Every state and territory handles UPL a little differently. Make sure you understand your states laws.

How do I provide support to families without engaging in the Unauthorized Practice of Law?

Strategies & Tips

Use Disclaimers!
When to use disclaimers
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On the telephone (especially with new callers) During meetings, mediations and when doing trainings E-mail correspondence and websites Any other time you feel you need to clarify what your role is and what it isnt

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Sample Telephone Disclaimer

I am not an attorney. This means that I cannot give you any type of legal advice. I cannot legally represent you or make any decisions for you about your child. What I can do is provide support to you and your child. I can help you learn what your rights are and brainstorm with you to come up with different options. I can make referrals and help you find appropriate resources. If you do have a legal issue or problem, I can give you the names of some attorneys that may be able to help you.

Sample Meeting & Mediation Disclaimer

My name is ___, and I am from (the agency you work with).

[Describe that agency]

My role here today is to serve as (parents name) and (childs name)s advocate. I am not here as their attorney. I am here to support this family, which may include helping them understand their rights and options, and helping them brainstorm ideas and solutions.

Important Note About Disclaimers

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In re Ferguson

Under Ohio law, statements in solicitation letters and other documents provided to a debtor which announce that the intermediary is not an attorney and does not give legal advice do not insulate the intermediary from the unauthorized practice of law.

What does this mean? (A chicken is still a chicken even if you call it a rooster!)

Strategies to remember
1.

If you dont know the answer, DONT guess! No one expects you to be a resource on every issue or problem concerning special education. There is nothing wrong with stating, I dont know. Rely on written sources when at all possible. Empower the parents to be able to locate written sources of information and use them to advocate in the future for their own child.

2.

Strategies, contd
3.

Support and empower parents to make good decisions. Do not try to represent or make decisions for others. Focus on collaboration. Advocates do not need to be adversarial!

4.

Strategies, contd
5. Focus on disseminating information, presenting options and problem solving, not dictating a course of action. 6. Choose your words carefully. Eg. You may want to look into or explore option B (instead of) You must do option B

Strategies, contd
7. Avoid the temptation to take over for the parent. Parents need to be part of all processes and decisions your job is to make them feel supported in doing so. 8. Make referrals when you feel they are appropriate.

The Virginia Mediator Model

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A mediator may provide legal resource and procedural information to disputants. Eg. Providing copies of statutes or informational pamphlets and brochures. A mediator may make statements declarative of the law. However, making these statements should not have the effect of predicting a specific outcome or directing the actions of the parties. A mediator may inform the disputing parties about the mediators experiences with a particular court or type of case. If a mediator chooses to do this, they must be able to identify the basis for his/her observations, such as personal experience or empirical research. A mediator may not make specific predictions about the legal issues or direct the decision-making of any party. In general, the line between legal information and legal advice is crossed whenever a mediator applies legal principles to facts in the mediation and predicts a specific resolution or makes statements that direct the actions of the parties.

Maryland Attorney Generals Opinion On the Role Of Domestic Violence Advocates

A lay advocate may: - provide victims with basic information about the existence of legal rights and remedies; - provide victims with basic information about the manner in which judicial proceedings are conducted; - assist a victim to prepare a legal pleading or other legal document on her own behalf by defining unfamiliar terms on a form, explaining where on a form the victim is to provide certain info, and if necessary transcribing or otherwise recording the victims own words verbatim; - sit with a victim at trial table, if permitted by the court; and - engage in general advocacy of the rights of battered women as a group. Except under the supervision of an attorney, a lay advocate may not: - provide advice relating to a victims rights or remedies, including whether a victims particular circumstances suggest that she should pursue a particular remedy; - provide information about the legal aspects of judicial proceedings, such as how to present a case, call witnesses, introduce evidence, and the like; - use the advocates own language in preparing or filling out for m pleadings or other legal documents; or - engage in advocacy before any governmental representative on behalf of an individual victim.

What can we do at our Center about UPL?

1. 2.

3. 4. 5.

Find out what your states law is on UPL Provide training ANNUALLY on UPL to your staff and volunteers (laws change and people need updates). Use an attorney to do this who can keep abreast of any changes. Develop standard disclaimers and use them regularly and consistently. Have a policy and procedure on the issue. Collaborate with your P&A on the issue if appropriate.

Another strategy for your Center Create an attorney roster so you have a place to refer families when believe their situation calls for legal advice/legal assistance.

Remember!
The philosophy behind parent center services is:

To be a place of support and empowerment;

To teach the skills and information parents need to navigate the special education system; To build confidence and encourage selfadvocacy so parents can feel comfortable advocating on their own; To model communication and collaboration.

CASE STUDIES, part I

Lets do a little practical application!

CASE STUDIES, part II

Some short ones to use back at your center!

Thank you!