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...
