What is the difference between a special education attorney and an advocate?

November 16, 2015


Everyone knows that to practice law, a lawyer must have a law license. The law license is the most obvious difference between an attorney and an advocate. To obtain a license in California, the attorney must have passed the bar exam as well as an examination of professional ethics, and in almost all cases, the attorney must have attended law school and earned a juris doctorate degree. To maintain their law license, attorneys must act competently and adhere to a legal code of ethics, and they must take law classes during their career as a lawyer.


Many advocates are passionate parents of children with disabilities who learned the ropes at IEP meetings. Some advocates have participated in hearings, and they have valuable information to impart to other parents regarding IEPs, special education, and parent and children's rights under the law.


Some advocates are very experienced and knowledgable. Many advocates are former special education teachers. Some have been appointed by a court to appear on behalf of juveniles in juvenile court and others work for attorneys. I know of one advocate who attended law school and earned a juris doctorate degree. But without a license to practice law, is an advocate, even one with a juris doctorate degree, in danger of engaging in the unauthorized practice of law?


The Three Types of Activities That Constitute the Practice of Law in California


What constitutes “practicing law” is not defined by California statute. The courts, however, have held that the “practice of law” includes three types of activities. First, it includes services provided in a lawsuit or similar proceeding. Second, it includes the giving of legal advice. Third, it includes the preparation of documents that secure legal rights. 


Special Education Advocates in California have Few Limiations


The Individuals with Disabilities Education Act (“IDEA”) allows advocates to appear at hearings. Specifically, regarding hearings, the law states: “Any party to a 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.” 


Certainly advocates in California can and do attend hearings. Advocates also attend IEP meetings with parents, and sometimes they help families negotiate settlements of due process disputes with school districts. The question remains as to what sort of limitations exist on what advocates may do in representing families.   


Although advocates often inform parents about special education law, depending on the circumstances, they may possibly be unable to offer parents legal advice without engaging in the unauthorized practice of the law.


Recovery of Attorney Fees 


Another important difference between attorneys and advocates is that under the IDEA, reasonable attorney fees may possibly be recoverable, but advocate fees are not recoverable. For this reason, some attorneys represent low-income parents on a contingency fee basis and don't charge the parents any fees. Instead, these attorneys work to recover attorney's fees from the school district. 


Whether you choose to collaborate with an attorney or an advocate to obtain an appropriate education for your child, understand that there are real differences between the two.



Martha Millar is a special education attorney who serves clients throughout California. 


You may reach her at marthamillarlaw@gmail.com, or call her today for a free telephone consultation at 916-724-5211.


Visit Marthamillarlaw.com for more information.


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