Proposed Authorized Practice Advisory Opinion 2026-1: On the Role of Nonlawyers Assisting Clients with Special Education Matters Litigated Before the North Carolina Office of Administrative Hearings

The North Carolina Office of Administrative Hearings has asked The North Carolina State Bar to interpret the North Carolina unauthorized practice of law statutes (N.C. Gen. Stat §§ 84-2.1-84-5) as applied to nonlawyers assisting students and families in contested cases under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA), 20 U.S.C. § 1400 et seq. The North Carolina Office of Administrative Hearings (OAH) is responsible for holding due process hearings required by the IDEA. Under the IDEA, parents of children with disabilities may be accompanied and advised by non-attorneys with special knowledge or training concerning the educational needs of children with disabilities. 20 U.S.C. § 1415(h). However, the role of nonlawyer advocates or consultants must remain within the confines of state law. 34 CFR § 300.512(a)(1). After careful consideration and investigation, the State Bar issues the following advisory opinion as authorized by N.C. Gen. Stat. § 84-37(f), as guidance about how the North Carolina unauthorized practice of law statutes apply in this context.

N.C. Gen. Stat. § 84-2.1 defines the practice of law as “performing any legal service for any other person, firm or corporation, with or without compensation, specifically including...the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial and quasi-judicial bodies, or assisting by advice, counsel, or otherwise in any legal work; and to advise or give opinion upon the legal rights of any person, firm or corporation...”. N.C. Gen. Stat. § 84-4 provides that persons other than active members of the North Carolina State Bar are prohibited from practicing law.

The Office of Administrative Hearings is a quasi-judicial agency. IDEA due process hearings are presided over by an administrative law judge and conducted in a manner typical of contested adjudicatory hearings. Hearings are conducted in accordance with the Rules of Evidence and the Rules of Civil Procedure. Decisions are subject to appellate review, so issues for appeal must be raised in the OAH hearing and made part of a properly constructed record on appeal. The representation of a party in IDEA due process hearings is therefore the practice of law.

Nonlawyer special education advocates or consultants ideally have special knowledge or training about children with disabilities and their educational needs. However, they do not have training in law, evidence, and procedure, and there is currently no governmental licensing program and no regulatory agency that guides or regulates their work. Because lay advocates are unregulated, they are not answerable as lawyers are to a code of ethics or a disciplinary process designed to protect the public.

As the IDEA requires that nonlawyers’ advice and advocacy in these proceedings comply with state law, the committee finds that the IDEA does not authorize nonlawyers to render legal services in OAH proceedings. There is no exception under current North Carolina statutes permitting nonlawyers to provide legal services in this context. Accordingly, absent a statutory change, a nonlawyer is engaged in the unauthorized practice of law if he or she provides legal services in connection with a due process hearing before the OAH, including but not limited to:

1. Preparing, signing, or co-signing pleadings;

2. Preparing discovery requests or responses;

3. Presenting arguments during a hearing;

4. Offering documents into evidence;

5. Examining witnesses during a hearing;

6. Making legal objections during a hearing;

7. Providing legal guidance or procedural advice during a hearing or in preparation for a hearing;

8. Explaining or recommending a course of action that requires the exercise of legal judgment or that has implications with respect to a parent or student’s legal rights or obligations; or

9. Representing a party in a mediation that could result in settlement of legal issues or the resolution of a contested case.

The foregoing list is not exclusive, but reflects a range of responsibilities and duties that involve the following: The exercise of legal judgment, the preparation of legal documents, the provision of legal advice or opinions, or the performance of other services that constitute the practice of law.

In working with nonlawyers in the special education context, the conduct of lawyers is governed by the Rules of Professional Conduct. Ethical considerations may differ depending upon the lawyer’s relationship to the nonlawyer consultant or advocate. For instance, if a nonlawyer consultant or advocate is an employee of the lawyer’s firm, the lawyer is responsible for the supervisory duties as set forth in Rule 5.3. When a nonlawyer advocate or consultant not employed by the lawyer’s firm participates in a matter in which a client is also receiving legal services, the lawyer’s communication with the advocate/consultant regarding the lawyer’s representation of the client is subject to the confidentiality requirements of Rule 1.6. Regardless of whether a nonlawyer consultant or advocate is an employee of the lawyer’s firm, a lawyer must maintain appropriate communication with a client as outlined in Rule 1.4. Under Rule 5.5(f), regardless of whether a nonlawyer consultant or advocate is an employee of the lawyer’s firm, a lawyer shall not assist a nonlawyer consultant or advocate in the unauthorized practice of law. The foregoing examples do not constitute an exclusive list. Lawyers are encouraged to contact ethics counsel at the State Bar if they have questions about their professional responsibilities.

The State Bar has no authority to amend or formulate exceptions to North Carolina law defining and governing the practice of law. In issuing this advisory opinion, it simply articulates for the guidance of the public how it believes a court would ultimately resolve the question of how current law restricts the permissible scope of activities for lay advocates or consultants in special education hearings before the OAH.