Becerra, 092817 CAAGO, AGO 14-101

Docket Nº:AGO 14-101
Case Date:September 28, 2017
Court:California
 
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XAVIER BECERRA Attorney General
MANUEL M. MEDEIROS Deputy Attorney General
AGO 14-101
No. 14-101
California Attorney General Opinions
Office of the Attorney General State of California
September 28, 2017
         THE HONORABLE ZACKERY P. MORAZZINI, DIRECTOR AND CHIEF ADMINISTRATIVE LAW JUDGE OF THE OFFICE OF ADMINISTRATIVE HEARINGS, has requested an opinion on the following questions:
1. Does the Administrative Procedure Act (Gov. Code, §§ 11340-11529) authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar?
2. Does title 20 United States Code section 1415(h)(1), or its implementing regulations, or California Education Code section 56505, subdivision (e)(1), authorize a party to a special education "due process hearing" to be represented by a person who is not an active member of the California State Bar?
         CONCLUSIONS          1. The Administrative Procedure Act does not, in itself, authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar.          2. Neither title 20 United States Code section 1415(h)(1), nor its implementing regulations, nor California Education Code section 56505, subdivision (e)(1), authorizes a party to a special education "due process hearing" to be represented by a person who is not an active member of the California State Bar.          ANALYSIS          The Office of Administrative Hearings (OAH) is an entity within the Department of General Services.1 It is a "quasi-judicial tribunal that hears administrative disputes." [2]OAH provides administrative law judges to conduct hearings for more than 1,500 state and local government agencies.[3] Among its adjudicative responsibilities under the Administrative Procedure Act,4 the OAH provides mediators and administrative law judges from its Special Education Division to conduct proceedings related to special education disputes under contract with the Department of Education.5          Question 1          The first question is whether the provisions of the Administrative Procedure Act (APA) authorize a party in an administrative proceeding conducted by the OAH to be represented by a person who is not an active member of the California State Bar. We conclude that the APA does not, in itself, authorize such representation.          The focus of our analysis is on the "administrative adjudication" provisions of the APA, which are in chapters 4.5 and 5 of the Act.6 For purposes of the APA, an "adjudicative proceeding" is "an evidentiary hearing for determination of facts pursuant to which an agency formulates and issues a decision."[7] Whenever an adjudicative proceeding is required by the federal or state constitution, or by federal or state statute, the proceeding is governed by the APA. Chapter 4.5 of the APA sets out an overarching scheme that applies to all administrative proceedings governed by the APA, including the "Administrative Adjudication Bill of Rights."8 Certain proceedings are, by statute, expressly made subject to the "formal" procedures of chapter 5 of the APA.9 In general, each agency that affords administrative hearings may determine its own hearing procedures, with reference to both the APA and to statutes applicable to that agency.[[1]]          Chapter 5 proceedings bear many of the attributes of a civil trial, including discovery,11 prehearing conferences,[12] motions,13 settlement conferences,[14] and amicus briefs.[1] Except when expressly provided otherwise,16 a formal proceeding under Chapter 5 is conducted by an Administrative Law Judge from the OAH.17          We are advised that parties to proceedings conducted by the OAH sometimes seek to be represented by a person who is not a member of the California State Bar, giving rise to the question whether representation by a nonlawyer is authorized by the APA.          The representation of another before a governmental entity has historically been regarded as the "practice of law.18 Under the State Bar Act, it is unlawful to practice law in this state unless one is a member of the California State Bar or is otherwise authorized by statute or court rule to engage in the practice of law.[19] Although the Legislature has refrained from closely defining what constitutes the practice of law,20 courts have construed the term to include "the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure," and, even more broadly, "legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation."21          While courts are careful to guard their constitutional prerogative to determine the qualifications of those who may practice before them,22 they have generally deferred to the discretion of the Legislature or the executive branch where administrative adjudications...

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