Can a party to a California administrative hearing, including a special education due process hearing under IDEA, be represented by someone who is not a licensed California attorney?

Plain-English summary

The Director and Chief Administrative Law Judge of the California Office of Administrative Hearings asked two related questions about who can represent a party in administrative hearings in California.

Question 1: Does the California APA authorize non-lawyer representation in OAH proceedings generally? The AG answered no. Representing another person before a government tribunal is the "practice of law," and California's State Bar Act prohibits the unauthorized practice of law (Cal. Bus. & Prof. Code §§ 6125-6126). The Administrative Procedure Act (Gov. Code §§ 11340-11529) itself contains no provision authorizing non-attorney representation. The Administrative Adjudication Bill of Rights, which applies to all APA hearings, does not include a right to lay representation. Chapter 5 (formal) hearings, which have many of the attributes of a civil trial, give respondents a right to be present, to be represented by an attorney at their own expense, or to represent themselves; no language authorizes representation by a non-attorney. The Legislature has authorized non-attorney representation in specific contexts (workers' compensation, agricultural labor, unemployment insurance, social welfare, school expulsion, Franchise Tax Board), and several individual agencies have enabled lay representation by regulation. But the APA itself does not.

Question 2: Does federal IDEA (20 U.S.C. § 1415(h)(1)) or California Education Code section 56505(e)(1) authorize non-attorney representation in special education due process hearings? The AG answered no. For years, the U.S. Department of Education had assumed the federal statute allowed lay representation, but in 2008 it reconsidered and concluded Congress meant to leave that choice to the states. The implementing federal regulation, 34 C.F.R. § 300.512(a)(1), now provides that "[w]hether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." California has not adopted any rule or statute permitting non-lawyer representation in special education hearings, and Ed. Code § 56505 has not been amended since 2008 to do so. The statutory language gives parties a right to be "accompanied and advised by counsel and by individuals with special knowledge or training" relating to children with disabilities. The AG read this as a right to bring along a knowledgeable lay advocate as an adviser, not a right to have a lay person legally represent the parent. Lay advocates may attend and advise, but they may not engage in the practice of law.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

The Office of Administrative Hearings. A quasi-judicial tribunal within the Department of General Services that provides administrative law judges to more than 1,500 state and local government agencies. Gov. Code § 11370.2. OAH's Special Education Division handles IDEA due process hearings under contract with the California Department of Education. Ed. Code §§ 56504.5(a), 56505.

The State Bar Act and the practice of law. Cal. Bus. & Prof. Code §§ 6125-6126 make it unlawful to practice law in California unless one is a member of the State Bar or otherwise authorized. The California Supreme Court has read "practice of law" broadly to include representing another before a government tribunal. Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543; Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 335-336; Birbrower, Montalbano, Cordon & Frank v. Superior Court (1998) 17 Cal.4th 119, 128. Out-of-state attorneys who are not California Bar members fall within the prohibition just like lay persons. Birbrower, 17 Cal.4th at 130-132.

Specific statutory authorizations for lay representation. Examples cited by the AG:

• Workers' compensation (Lab. Code § 5700)
• Agricultural Labor Relations Board (Lab. Code § 1151.3)
• Unemployment Insurance Appeals Board (Unemp. Ins. Code § 1957)
• Department of Developmental Services (Welf. & Inst. Code § 4701(f)(3))
• Department of Social Welfare (Welf. & Inst. Code § 10950(a))
• School expulsion (Ed. Code § 48918(b)(5))
• Franchise Tax Board (Rev. & Tax Code § 19084(a)(4))

Agency regulations allowing lay representation. Examples include State Personnel Board, Gambling Control Commission, Occupational Safety & Health Appeals Board, Air Resources Board, Employment Development Department, Department of Child Support Services.

The APA itself is silent. The APA's Administrative Adjudication Bill of Rights (Gov. Code §§ 11425.10-11425.60) does not list lay representation as a right. The Chapter 5 formal-hearing notice in Gov. Code § 11509 informs respondents they may be present, may be represented by an attorney at their own expense, are not entitled to an attorney at public expense, and may represent themselves. The list does not include lay representation. The AG read several APA provisions that reference non-lawyer activity (service of notice on representatives, written submissions, etc.) as implicit recognition that other statutes elsewhere authorize lay representation, not as the APA itself authorizing it. Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 508 (absence of authorization is significant).

Judicial deference. Courts have generally deferred to legislative or executive decisions on who may practice before administrative tribunals, subject to inquiry into propriety and reasonableness. Eagle Indem. Co. v. Industrial Acc. Commission (1933) 217 Cal. 244, 247-249 (workers' compensation lay representation is a valid policy choice). The AG flagged but did not rely on the corporate-officer-representation cases (Caressa Camille, Prudential Ins.) as a distinct line.

IDEA and California's parallel statute. 20 U.S.C. § 1415(h)(1) gives parties a 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." California Education Code § 56505(e)(1) uses parallel language. The 2008 federal regulatory revisions made clear that whether non-attorneys can represent parties at due process hearings is up to the states. 34 C.F.R. § 300.512(a)(1); 73 Fed. Reg. 73027 (Dec. 1, 2008). California has not adopted a rule permitting lay representation.

The AG's reading of Ed. Code § 56505(e)(1). A right to be "accompanied and advised" by people with special knowledge is a right to consult and confer with lay experts, not a right to have a lay person legally represent the parent. So lay advocates may attend and advise; only an attorney may serve as the party's legal representative.

Common questions

Q: I'm a California parent. Can a lay special-education advocate represent me at the OAH due process hearing for my child?
A: According to this opinion, no. The advocate may attend the hearing with you and advise you, and you may represent yourself, but the advocate may not act as your legal representative. To have legal representation, you need a licensed California attorney.

Q: Can a non-attorney represent me at any California state administrative hearing?
A: It depends on the specific agency and the specific statute. The Legislature has authorized non-attorney representation in some contexts (workers' compensation, unemployment, agricultural labor, social welfare, school expulsion, FTB). Some agencies allow it by regulation. The APA itself does not.

Q: Can an out-of-state attorney represent me in California?
A: Not for California legal proceedings, unless authorized by statute, court rule, or pro hac vice admission. Birbrower treats out-of-state attorneys the same as lay persons for California unauthorized-practice-of-law purposes.

Q: I'm a special education advocate. Can I still help families?
A: Yes. You can advise and accompany parents to due process hearings; § 56505(e)(1) expressly contemplates that. You can help with paperwork, IEP meetings, and strategy. What you cannot do is take on the formal legal representative role at the hearing.

Q: What if I am pro se? Can I bring an advocate to argue for me?
A: You can represent yourself. The advocate can sit with you, hand you documents, and confer with you. The advocate cannot present argument or examine witnesses on your behalf as your legal representative.

Q: Has the Legislature considered authorizing lay representation in special education hearings?
A: As of December 2017, Ed. Code § 56505 had not been amended to do so since the 2008 federal regulatory change. The AG noted no court holding to the contrary. Check current law before assuming the position remains unchanged.

Citations and references

State statutes:

• Cal. Bus. & Prof. Code §§ 6001.1, 6125, 6126, 6450, 22440 et seq.
• Cal. Gov. Code §§ 11340-11529 (APA); 11370.2; 11400; 11405.20; 11415.10; 11425.10-11425.60; 11440.20; 11440.60; 11455.30; 11501; 11502; 11507.6; 11507.7; 11509; 11511; 11511.5; 11511.7; 11520; 27727
• Cal. Lab. Code §§ 1151.3, 5700
• Cal. Unemp. Ins. Code § 1957
• Cal. Welf. & Inst. Code §§ 4701, 10950
• Cal. Code Civ. Proc. § 1297.351
• Cal. Ed. Code §§ 48918, 56000, 56040, 56501, 56504.5, 56505
• Cal. Rev. & Tax Code § 19084

Federal statutes and regulations:

• 20 U.S.C. §§ 1400-1482 (IDEA), § 1412(a)(1)(A), § 1415(b)(6)(A), (f)(1)(A), (h)(1)
• 34 C.F.R. §§ 300.507, 300.511, 300.512
• 45 C.F.R. § 205.10(a)(3)(iii)
• 73 Fed. Reg. 73027 (Dec. 1, 2008)

Cases:

• Birbrower, Montalbano, Cordon & Frank v. Superior Court (1998) 17 Cal.4th 119
• Baron v. City of Los Angeles (1970) 2 Cal.3d 535
• Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329
• Eagle Indem. Co. v. Industrial Acc. Commission (1933) 217 Cal. 244
• Consumers Lobby Against Monopolies v. PUC (1979) 25 Cal.3d 891
• Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61
• Merco Constr. Engineers v. Municipal Court (1978) 21 Cal.3d 724
• Sierra Club v. San Joaquin LAFCO (1999) 21 Cal.4th 489

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/14-101_2.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION of XAVIER BECERRA, Attorney General
MANUEL M. MEDEIROS, Deputy Attorney General

No. 14-101
September 28, 2017

THE HONORABLE ZACKERY P. MORAZZINI, DIRECTOR AND CHIEF ADMINISTRATIVE LAW JUDGE OF THE OFFICE OF ADMINISTRATIVE HEARINGS, has requested an opinion on the following questions:

1. Does the Administrative Procedure Act (Gov. Code, §§ 11340-11529) authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar?

2. Does title 20 United States Code section 1415(h)(1), or its implementing regulations, or California Education Code section 56505, subdivision (e)(1), authorize a party to a special education "due process hearing" to be represented by a person who is not an active member of the California State Bar?

CONCLUSIONS

1. The Administrative Procedure Act does not, in itself, authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar.

2. Neither title 20 United States Code section 1415(h)(1), nor its implementing regulations, nor California Education Code section 56505, subdivision (e)(1), authorizes a party to a special education "due process hearing" to be represented by a person who is not an active member of the California State Bar.

ANALYSIS

The Office of Administrative Hearings (OAH) is an entity within the Department of General Services. It is a "quasi-judicial tribunal that hears administrative disputes." OAH provides administrative law judges to conduct hearings for more than 1,500 state and local government agencies. Among its adjudicative responsibilities under the Administrative Procedure Act, the OAH provides mediators and administrative law judges from its Special Education Division to conduct proceedings related to special education disputes under contract with the Department of Education.

Question 1

The first question is whether the provisions of the Administrative Procedure Act (APA) authorize a party in an administrative proceeding conducted by the OAH to be represented by a person who is not an active member of the California State Bar. We conclude that the APA does not, in itself, authorize such representation.

The focus of our analysis is on the "administrative adjudication" provisions of the APA, which are in chapters 4.5 and 5 of the Act. For purposes of the APA, an "adjudicative proceeding" is "an evidentiary hearing for determination of facts pursuant to which an agency formulates and issues a decision." Whenever an adjudicative proceeding is required by the federal or state constitution, or by federal or state statute, the proceeding is governed by the APA. Chapter 4.5 of the APA sets out an overarching scheme that applies to all administrative proceedings governed by the APA, including the "Administrative Adjudication Bill of Rights." Certain proceedings are, by statute, expressly made subject to the "formal" procedures of chapter 5 of the APA. In general, each agency that affords administrative hearings may determine its own hearing procedures, with reference to both the APA and to statutes applicable to that agency.

Chapter 5 proceedings bear many of the attributes of a civil trial, including discovery, prehearing conferences, motions, settlement conferences, and amicus briefs. Except when expressly provided otherwise, a formal proceeding under Chapter 5 is conducted by an Administrative Law Judge from the OAH.

The representation of another before a governmental entity has historically been regarded as the "practice of law." Under the State Bar Act, it is unlawful to practice law in this state unless one is a member of the California State Bar or is otherwise authorized by statute or court rule to engage in the practice of law. Although the Legislature has refrained from closely defining what constitutes the practice of law, courts have construed the term to include "the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure," and, even more broadly, "legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation."

While courts are careful to guard their constitutional prerogative to determine the qualifications of those who may practice before them, they have generally deferred to the discretion of the Legislature or the executive branch where administrative adjudications are concerned, subject to "judicial inquiry as to [the] propriety and reasonableness" of such regulations. Thus, the Supreme Court has acknowledged that, in the context of workers' compensation administrative proceedings, the Legislature has created an exception to the general prohibition against the practice of law by those who are not members of the California State Bar, and the Court has recognized this to be a valid legislative policy choice.

From time to time, the Legislature has determined that, in selected administrative proceedings, a party may choose to be represented by a nonlawyer. Likewise, several administrative agencies have chosen to give parties the option of lay representation.

But the question posed here is whether the APA itself authorizes a party to be represented by a nonlawyer in an administrative proceeding. We conclude that it does not. Unlike the statutes and administrative regulations that expressly allow parties to choose to be represented by a nonlawyer, the APA does not reflect any particular policy choice on the subject. No provision of the APA expressly authorizes lay representation of parties in administrative hearings. Notably, the Administrative Adjudication Bill of Rights — which applies to all proceedings under the APA, whether conducted pursuant to Chapter 5 or not — does not identify a right to lay representation.

The Legislature appears to have left the decision whether to permit lay representation to the discretion of each administrative agency wherever the agency is given discretion to tailor its own procedures. But no discretion is afforded in those cases where Chapter 5 formal procedures are required. The notice of hearing that is required to be given to respondents in Chapter 5 proceedings states:

You may be present at the hearing. You have the right to be represented by an attorney at your own expense. You are not entitled to the appointment of an attorney to represent you at public expense. You are entitled to represent yourself without legal counsel. . . .

Absent from this enumeration is any reference to a party's right to be represented by someone other than an attorney. This is not surprising. As noted earlier, Chapter 5 proceedings have many of the attributes of civil trials and, therefore, can reasonably be said to call for "the application of legal knowledge and technique."

Because the Legislature has, in other statutes, expressly authorized lay representation of parties, the absence of any such authorization in the APA is especially significant. As it stands, in those proceedings required by statute to be conducted under Chapter 5, no lay representation is authorized. In other administrative proceedings, the availability of lay representation is left to the discretion of the administrative agency, consistent with the public policies underlying the State Bar Act. In light of the strong public-protection policy expressed by the State Bar Act, we are not free to infer that the APA holds an unspoken exception to the prohibition against the unlicensed practice of law.

We conclude that the Administrative Procedure Act does not, in itself, authorize a party to be represented in an administrative hearing by a person who is not an active member of the California State Bar.

Question 2

The second question is whether title 20 United States Code section 1415(h)(1), or its implementing regulations, or California Education Code section 56505, authorizes a party to a special education "due process hearing" to be represented by a person who is not an active member of the California State Bar. We conclude that they do not.

The federal Individuals with Disabilities Education Act (IDEA) regulates states' provision of special education to students with disabilities. As a condition to receiving federal funds under IDEA, California has agreed to comply with IDEA's substantive provisions and procedural protections.

IDEA allows a party to make a complaint relating to "the identification, evaluation, or educational placement" of a child with disabilities, or to "the provision of a free appropriate public education" for the child. Such complaints may be resolved through mediation or through a "due process hearing." Under state law, due process hearings are conducted according to regulations adopted by the state Board of Education. In a due process hearing, the parties have a 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." We now consider whether — under federal law (IDEA) or its implementing California law (Education Code section 56505) — a party is entitled to be represented by an expert adviser rather than by an attorney.

Looking first at IDEA section 615(h)(1) (20 U.S.C. § 1415(h)(1)), we conclude that it does not create an entitlement to lay representation in a due process hearing. For a number of years, the United States Department of Education assumed that this federal statute authorized lay representation, until the Department reconsidered the question in 2008 and concluded that Congress more likely had intended to leave the issue of lay representation to the States. The applicable federal regulation, updated in 2008, states, "[W]hether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." Finding no court holding to the contrary, we conclude that IDEA does not, in itself, authorize a party to be represented in a due process hearing by a person who is not an attorney.

That brings us to the California Education Code. In 1980, the Legislature enacted Education Code section 56505, using language that echoes the IDEA provisions phrase for phrase. Section 56505 has not been amended since 2008, when the U.S. Department of Education revised its regulations and left it to the states to decide for themselves whether to permit lay representation in IDEA hearings. California has not adopted any rule or statute to enable lay representation in special education proceedings. Therefore, we conclude that there is no entitlement to lay representation in special education due process hearings.

By no means do we suggest that consultants and other lay advocates are barred from due process hearings. The law clearly states that, in addition to counsel, a party has "a right to be accompanied and advised by . . . individuals with special knowledge or training relating to the problems of individuals with exceptional needs." We conclude only that parties to special education due process hearings do not have a right to have their legal interests represented by a nonlawyer. In other words, a nonlawyer may not engage in the practice of law in special education due process hearings.

Accordingly, we conclude that neither title 20 United States Code section 1415(h)(1), nor its implementing regulations, nor California Education Code section 56505, subdivision (e)(1), authorizes a party in a special education due process hearing to be represented by a person who is not an active member of the California State Bar.