Unauthorized Practice of Law

Unauthorized Practice of Law

EA is charged with conducting due process hearings involving claims brought by parents of students with disabilities or school districts under the Individuals with Disabilities Education Act (IDEA). In 2008, language was added to the IDEA regulations to clarify that the parties to due process hearings 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, except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under state law.

Because the matter of representation by non-attorneys asks a question of state law, the commissioner of education sought the attorney general’s opinion regarding whether such representation is allowed in Texas. The attorney general issued an opinion on May 21, 2012. The attorney general concluded that he could not determine whether particular conduct of an individual who is not an attorney at a special education due process hearing constitutes the practice of law, but that the Texas Education Agency has authority to adopt rules governing the representation of a party at a special education due process hearing. A TEA rule allowing a non-attorney to engage in conduct constituting the practice of law could be held invalid by a court. GA-936 (RQ-1021-GA) (Texas Attorney General). LAF’s Attorney: Chris Borreca, Thompson & Horton, LLP, Houston.