In re Arons, 440, 1999.

• Decision Date: 06 July 2000
• Docket Number: No. 440, 1999.,440, 1999.
• Citation: 756 A.2d 867
• Parties: In the Matter of Marilyn ARONS, Ruth Watson and Parent Information Center of New Jersey, Inc., Respondents.
• Court: Supreme Court of Delaware

756 A.2d 867

In the Matter of Marilyn ARONS, Ruth Watson and Parent Information Center of New Jersey, Inc., Respondents.

No. 440, 1999.

Supreme Court of Delaware.

Submitted: May 23, 2000.

Decided: July 6, 2000.

Mary M. Johnston, Chief Counsel and Michael S. McGinniss, Disciplinary Counsel, (argued), Office of Disciplinary Counsel, Wilmington, Delaware, for Appellee.

Walter Speed Rowland, Wilmington, Delaware and David C. Vladeck, (argued) and Amanda Frost, Public Citizen Litigation Group, Washington, DC, for Appellants-Respondents.

Bill Lann Lee, Acting Assistant Attorney General, Mark L. Gross and Lisa J. Stark, Department of Justice, Washington, DC, for The United States as Amicus Curiae.

Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT,¹ and BERGER, Justices, constituting the Court En Banc. WALSH, Justice:

This is an appeal from a decision of the Board on the Unauthorized Practice of Law (the "Board"), an arm of the Supreme Court of Delaware, concluding that the appellants had engaged in the unauthorized practice of law. The appellants, supported by the United States Department of Justice as amicus curiae, contend that the Board erred in not recognizing their entitlement under federal law to represent parents of children with disabilities before State administrative agencies. That entitlement, it is argued, preempts state law and is supported by due process considerations. We conclude, however, that the Board's decision is supported by the evidence and free of any error of law. Accordingly, we affirm.

I

The appellants, Marilyn Arons and Ruth Watson, are, respectively, the founder and Executive Director of Parent Information Center of New Jersey, Inc. (collectively "Appellants"). The Parent Information Center is a non-profit organization founded in 1977 that provides advice, counseling and advocacy services to families of children with disabilities. On five occasions, the Center has represented families of children with disabilities in "due process" hearings held by the Delaware Department of Public Instruction pursuant to the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.² Four of these five hearings were handled by Arons, while the other hearing was handled by Watson. Although neither Arons nor Watson is an attorney, both possess special knowledge and training with respect to the problems of children with disabilities.

The IDEA is intended to "ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education." 20 U.S.C. § 1415(a). Under the IDEA, the parents of a disabled child are entitled to challenge any proposal to change or initiate, or refusal to change or initiate, the identification, evaluation, educational placement or any other aspect of the provision of a free appropriate public education service to that child. See id. at § 1415(b)(3). When complaints are received, "the parents involved in such complaint shall have the opportunity for an impartial due process hearing." Id. at § 1415(f).

Due process hearings in Delaware are conducted in a manner typical of contested, adjudicatory hearings. The parties include the parent(s), the local school board and the Department of Public Instruction. The hearing is conducted by a three-member panel consisting of an attorney admitted to practice in Delaware; an educator who is either certified in the area of special education or who has been a post-secondary educator in the area of programs for students with disabilities; and a lay person with demonstrated interest in the education of students with disabilities from an approved list compiled by the Governor's Advisory Counsel for Exceptional Citizens. Hearings are chaired by the attorney member of the panel.

Due process hearings usually last from two to four days. The school board and the Department of Public Instruction are always represented by counsel. The hearing begins with opening statements from each party. Evidence is then presented through witnesses, who are subjected to direct and cross-examination. Although the rules of evidence do not apply strictly, the Chair rules on legal issues, the qualification of experts and objections to relevance, materiality and admissibility. Following the presentation of evidence, the parties make closing statements and may be asked to file written submissions on key questions.

On August 8, 1996, the Office of Disciplinary Counsel ("ODC") filed a petition with the Board requesting that Arons, Watson and the Parent Information 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. While admitting the representation of at least five such families in Delaware due process hearings, Appellants denied that their activities, even if amounting to the practice of law, constitute the unauthorized practice of law. They argued that section 1415(h)(1) of the IDEA permits the representations in which they have engaged and preempts any state-law proscription against the unauthorized practice of law that might otherwise apply. That section provides that any party to a due process hearing "shall be accorded .... the 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." They also claimed that Delaware is alone among the fifty states in precluding nonlawyer representation in these circumstances.

The matter was submitted to the Board on a stipulation of facts, including transcripts of due process hearings, briefs, oral argument and post-hearing correspondence. On September 24, 1999, the Board issued a written opinion concluding that the IDEA does not authorize the practice of law by non-lawyers, including Appellants, in due process hearings. This appeal followed. Following the entry of this appeal, the United States Department of Justice sought leave to appear as an amicus curiae. Leave was granted and the Department has filed a brief in support of Appellants' position.

II

The present appeal poses the first occasion for this Court to exercise its power of review of decisions of the Board. Under Supreme Court Rule 86(e), this Court will accept factual findings by the Board so long as they are supported by substantial evidence. We review on a de novo basis findings by the Board related to legal issues. See Supr.Ct.R. 86(e). Because the parties stipulated to the facts in this matter and the only dispute relates to matters of law, this Court's review on all issues is de novo.

Appellants' principal argument is that the IDEA guarantees parents the right to have trained non-lawyers advocate on their behalf in due process hearings. They contend that the IDEA could hardly be clearer because it draws no distinction between counsel and "individuals with special knowledge or training with respect to the problems of children with disabilities." To the extent that Delaware law conflicts with federal law, the argument runs, Delaware law is displaced and federal law governs.

The ODC responds that the IDEA unambiguously supports its position. It argues that counsel have inherent and presumptive representational ability and authority, while educational consultants do not, and that the statutory language of section 1415(h) neither creates nor implies an equivalence of permissible roles for "counsel" and for "individuals with special knowledge or training."

Appellants and the ODC each argue that the pertinent language of the IDEA in dispute—"the 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" — unambiguously supports their respective positions. We do not share the parties' vision of clarity. In our view, section 1415(h)(1) is ambiguous to the extent it appears to confer joint authority on lawyers and non-lawyers to accompany and advise parents and others affected by the operation of the due process hearings provided under the IDEA. That being said, however, case law as well as statutory history support the ODC's interpretation.

The pertinent language of section 1415(h)(1) has been discussed by the United States Court of Appeals for the Third Circuit in Arons v. New Jersey State Board of Education, 3d. Cir., 842 F.2d 58 (1988). In that case, Appellant Arons sought an award of fees for her successful representation of parents in a due process hearing in New Jersey, where state law allows non-lawyers to represent parents in due process hearings. In affirming a decision of the United States District Court for New Jersey that held that the New Jersey regulation authorizing such fees permitted payment of only legal fees and not those of lay advocates, the court of appeals rejected the statutory intent argument advanced by Appellants here. The court explained:

The carefully drawn statutory language does not authorize these specially qualified individuals to render legal services. Although the [IDEA] does give "[a]ny party to any hearing" the right to "present evidence and confront, cross-examine, and compel the attendance of witnesses," those functions are not designated to be performed by lay advocates. Furthermore, the statute does not use the word "represent" in subsection (d)(1), as would be expected if Congress intended to place expert and legal counsel on the same footing.

Our search through the legislative history has failed to uncover any indication that Congress contemplated that the "individuals with special knowledge" would act in a representative capacity. The Senate Report describes the "individual[s]" role as one of consultation, with emphasis on the responsibility to identify educational problems, evaluate them, and determine proper educational placement.

The provisions's [sic] text and history thus

...