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Advocates Act as Lawyers, and States Cry ‘Objection!’
Wall Street Journal - January 14, 1999

By Richard B. Schmitt

For years, Marilyn Arons has been an effective advocate for disabled children. She has argued before judges and cross-ex-amined witnesses, pushing for better classes and taking on school boards in hun-dreds of cases.

But Mrs. Arons isn't a lawyer, and, at least in Delaware, that seems to be a hand-icap. The state's lawyer disciplinary panel has launched a formal proceed-ing against Mrs. Arons and the non--profit group she founded, claiming she is practicing law without a li-cense and demand-ing that she "cease and desist" from her activities. The case is expected to be heard by an arm of the state Supreme Court early this year.

Mrs. Arons and her group "aren't char-latans-my clients don't even get paid," says David Vladeck, a Washington public-interest lawyer who represents Mrs. Arons. He says her organization has given "hundreds of families truly invaluable as-sistance."

At a time when even people of some means can't afford attorneys, the irons case is shaping up as a major test of the rights of nonlawyers to provide legal-re-lated services. Like Delaware, most states have laws banning the "unauthorized prac-tice of law," on the theory that nonlawyer operators present a serious danger to the public, since they aren't regulated.

Consumer groups say such laws mainly protect lawyers and boost the overall cost of public access to the justice system. In re-cent years, a few states have attempted to ease the rules covering nonlawyers, but of-ten with strings attached. Last fall, Cali-fornia enacted -measures permitting inde-pendent paralegals to fill out forms and documents for clients, but with the require-ment that they register with local court au-thorities and refrain from offering any kind of legal advice.

More often, states have taken a dim view of any nonlawyer legal activities. Last year, for instance, Texas officials launched a crackdown on Nolo Press, a Berkeley, Calif., concern that publishes software and other self-help guides on everything from making simple wills to in-corporating a small business.

"That's not protecting the public." says James Turner executive director of HALT, a Washington consumer-law group. The rules, he says, are being used by "lawyers who think they are losing business or adversaries who want to gag an opponent.”

Mrs. Arons started her Parent Informa-tion Center in 1977, out of her home in Tea-neck, N.J. At the time, she was battling her local school district to allow her neurologi-cally impaired daughter to attend regular classes. She ultimately won.

Over the years, the organization, which started out as a newsletter publisher, has come to advise about 20,000 families on their rights under the law, including the federal Individuals with Disabilities Edu-cation Act. In about 500 cases, mostly in the Northeast, it has gone so far as to repre-sent parents at hearings before adminis-trative-law judges, arguing for and fre-quently winning specialized instructional programs for their children, often at great expense to the schools.

Special education over the past decade has become a litigation flash point, pitting strapped school districts against parents emboldened by federal law, which guaran-tees disabled children certain minimum' educational opportunities. Nonlawyers have come to play a crucial role; because most parents can't afford private attorneys to guide them through the process.

Mrs. Arons is "probably the most well-known of these lay advocates," says Perry-Zirkel, a special-education expert at Lehigh University in Bethlehem, Pa., adding that she has also been "fairly suc-cessful" in getting school districts to bow to her demands.

Mrs. Arons, a 59-year-old former pub-lic-school teacher and curriculum special-ist with an added background in opera and theater, says she has never felt at a disad-vantage in court., "I found it a piece of cake," she says.

Years ago, she sued the New Jersey State Board of Education and others to win the right to charge for her legal work, ar-guing that her services were at least as valuable as those provided by licensed at-torneys. A Philadelphia federal appeals court rejected the suit but held open the possibility that she could collect money as an expert or consultant. She says that in a few instances she has collected fees but that most people she represents are too poor to pay anything. In another case, she persuaded a New Jersey federal court to extend the attorney-client privilege to com-munications she had with people she repre-sented, setting a legal precedent.

Today, her operation remains decid-edly grass-roots, with about 1,000 paying members. She greets clients in an office that used to be her back porch. Member-ship meetings are held at the local library. Funding comes mainly from dues, tax-de-ductible contributions and an occasional benefit concert, with Mrs. Arons singing as featured soloist.

"She is an extraordinarily passionate advocate," says Richard Acito, a former client, who lives in Hillsdale, N.J. Mr. Acito is himself a lawyer but felt comfortable having Mrs. Arons represent the interests of his disabled son many years ago before a hearing officer. Mrs. Arons exacted a set-tlement that placed Mr. Acito's child in a residential school. "I wish most of the bar were like her," Mr. Acito adds.

Mrs. Arons, who provided material to Congress in the 1997 reauthorization of IDEA, prides herself on being an aggres-sive litigator. A pack rat, she fills her house with files she says represent the history of the disabled-educational-rights move-ment. She plunks a volunteer at a worksta-tion in the attic, using every inch of space for her fight, and is known as dogged, but also as an expert in the field and a skilled operator.

About two years ago, Delaware author-ities took a different view, after Mrs. Arons began handling cases in that state and was starting to make a mark. Almost immedi-ately, school-board lawyers began com-plaining about the fact that she wasn't an attorney. The state's Office of Disciplinary Counsel, appointed by the state Supreme Court, picked up on those sentiments and filed a complaint in August 1996.

Mr. Vladeck, Mrs. Arons's lawyer, contends that federal law gives parents of dis-abled children the right to retain the likes of Mrs. Arons. In addition, he says, pro-hibiting parents from retaining non-lawyers in such cases, given a shortage of lawyers willing to do the work, deprives them of due process of law as guaranteed by the Constitution.

Charles Slanina, a Wilmington, Del., attorney who is handling the case for the state, concedes that to his knowledge none , of Mrs. Arons's Delaware clients have complained about the quality of her work or suffered any apparent harm. He describes the state's effort in Mrs. Arons's case as an "almost academic inquiry," al-beit one that could end up subjecting Mrs. Arons to criminal prosecution if she were to ignore any court order banning her from representing people. A hearing in the case is expected in a month or two, before the state's "unauthorized practice of law" board, which will then forward its recom-mendations to the Delaware Supreme court.

Mr. Slanina says the state is concerned about the lack of standards governing the conduct of nonlawyers and the lack of remedies, such as malpractice suits, nor-mally available to the clients of licensed professionals. “This is a question of ac-countability," he says.