Private law firms: Hear this about the ADA
As professional responsibility teachers often say, lawyers are not buses: we don’t have to take every client who walks in the door (or emails us).
But while we may not be buses, private lawyers are, under the Americans With Disabilities Act, public accommodations.
Having ramps and lifts, for example, may be obvious, but have you ever thought about how to accommodate potential and current clients who are deaf or hard of hearing?
ADA context
Title III, which prohibits discrimination on the basis of disability by places of accommodation, applies to lawyers and law offices of any size. 42 U.S.C. § 12181(7)((F) (“The following private entities are considered public accommodations...if the operations of such entities affect commerce… (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment….”)
The federal regulations implementing Title III require public accommodations to “take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.” Section 36.303(a) (emphasis added).
What are “auxiliary aids and services”? Section 36.303(b) describes examples:
i. Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
ii. Qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;
iii. Acquisition or modification of equipment or devices; and
iv. Other similar services and actions.
Public accommodations can’t require an individual with a disability to bring someone to interpret for him or her. In appropriate circumstances, an individual with a disability may request that an adult companion facilitate communication. Except in an emergency, a public accommodation is prohibited from relying on a minor child to interpret or facilitate communication. Section 36.303(c).
Public accommodations also generally bear the cost of the auxiliary aids and services. Section 36.301(c).
Lessons from two Title III cases
A New York lawyer violated Title III by not providing a sign-language interpreter for a deaf divorce client. The client filed an ADA complaint against the lawyer, who, according to the settlement agreement between the lawyer and the Department of Justice, communicated with the client by pen and paper, lip reading, and the National Relay Service. The client alleged that without a qualified sign-language interpreter, she did not understand all the lawyer conveyed and that his methods of communicating were inefficient. The DOJ concluded that the lawyer had failed to provide the client with “effective communication.” The settlement agreement also concludes that using a family member as a sign-language interpreter in a matter involving domestic violence was inappropriate. The lawyer agreed to return the fee the client paid, waive any amount owing, and post a statement in his office advising that he welcomed clients with disabilities and would provide qualified sign language interpreters at no cost. [U.S. Department of Justice complaint 202-53-20]
A New Mexico lawyer violated Title III by asking a client to have her nine-year-old son “interpret” for her at attorney-client appointments. The client repeatedly asked for a qualified interpreter. In response to one of her requests, the lawyer responded: “It is my understanding that you refuse to cooperate unless I provide you with an interpreter, which will cost me approximately [$80] an hour. I have never had to pay to converse with my own client. It would be different if you did not have anyone to translate for you. However, you have a very intelligent son who can do it for you. It appears that we are not able to work together. I believe you should find another attorney as I am going to withdraw from this case.” The settlement required that the lawyer pay the client $1,000 in damages and adopt and post the following policy prominently in his office: “To ensure effective communication with clients and companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, note takers, written materials, assistive listening devices and systems, and real-time transcription services.” [U.S. Department of Justice complaint 202-49-37]
Takeaways
Don't expect family members to interpret for deaf or hard-of-hearing clients or potential clients
You will pay for the auxiliary aids and services just as you may have paid to have a ramp installed
For further reading
You are Us: What Every Lawyer Needs to Know About Representing Disabled Client, Oregon State Bar Bulletin February/March 2008: https://www.osbar.org/publications/bulletin/08febmar/YouAreUs.html
Providing Effective Communication for Clients who are Deaf, Hard of Hearing, or Deaf/Blind: A Handbook for Florida Attorneys, by Sharon Caserta, Esq. http://www.floridalegal.org/deaf/deaf_hard_of_hearing-handbook.pdf