Law Practice Today | July 2013 | Disabilities/Diversity Special Issue
July 2013 | Disabilities/Diversity Special Issue
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ABA/LPM Annual Meeting 2013

FEATURE

Reflections on the Development of Disability as a Diversity Concern in the Legal Profession

Moderated by Sherri Rita


There are two “D” words that unfortunately, given what one of those words is supposed to represent, are not regularly spoken in the same sentence. When the legal profession embraced big “D” - Diversity as essential to its evolution, people with disabilities were not on the radar, and even as sophisticated corporations and other legal employers demonstrate their savvy by supporting a wide range of employee resource groups, targeted outreach, internal mentoring programs, and community based organizations as diversity enhancing strategies, these same organizations seem genuinely confused when it comes to how to find and integrate lawyers with disabilities into their work environments.

Even though parents and caregivers serve as prime examples of the champions of work-life balance and introduced creativity in how legal work can be done better, there persists the belief that because practicing law is a demanding job, intellectually challenging for the brightest people, fast-paced, and unyielding to personal issues, it is only a profession for the few, and certainly not people who, due to disability, may require workplace adaptations. Attorneys with disabilities, like parents and caregivers and everyone else whose talent and creativity is heightened due to their unique life experiences, can demonstrate the benefits of not staying locked in rigid concepts of how to run a law practice, and how to be a successful lawyer. Two lawyers with disabilities reflect on their personal journeys and the state of the profession as it prepares for a growing wave of young lawyers with a variety of disabilities, whose dreams of joining this revered profession could not have been fulfilled just twenty years ago.

Stuart PixleyStuart Pixley (S.P) is a Senior Attorney in the Legal and Corporate Affairs Intellectual Property Group at Microsoft in Redmond, WA. Previously, he was Special Counsel at Heller Ehrman (Menlo Park, CA), a Partner at Baker &McKenzie (San Francisco, CA), and an Associate at Brobeck, Phleger & Harrison (Palo Alto, CA) and at Milbank, Tweed, Hadley & McCloy (New York, NY). Mr. Pixley received his law degree from the University of California at Berkeley School of Law in 1997 and his Bachelor's in Arts in Psychology from Pitzer College in 1990. During his career, Mr. Pixley has handled a wide variety of high-impact technology and intellectual property transactions for software, semiconductor, pharmaceutical and biotech companies. Mr. Pixley currently specializes in patent licensing transactions and counseling on open source software. He is an active member of Microsoft’s Legal and Corporate Affairs Diversity Committee and this year is leading a nine member diversity team focused on disability diversity in the legal field. Mr. Pixley can be reached at stuarpix@microsoft.com.

William D. Goren,William D. Goren, (W.G.) (www.williamgoren.com) of Decatur, Georgia (Atlanta Metro), is a nationally known attorney, consultant, presenter, professor, and blogger on all things related to the American Disabilities Act (ADA). His practice focuses on making the ADA understandable so that it successfully works for you—whether you are a business owner, corporate HR professional, higher education administrator, attorney, employer, employee, or governmental entity. In addition to his book, Understanding the ADA, 4th Edition, which will be released this fall from the American Bar Association, and its prior editions, Mr. Goren is the author of numerous articles, most of which pertain to the rights of persons with disabilities. In addition to being a licensed attorney in Georgia, Illinois, and Texas, Mr. Goren is currently a member of the EEO committee of the American Bar Association's Labor and Employment Law section; and a member of both the American Bar Association's General Practice and Solo Section Pro Bono and Public Service and the Labor and Employment/Civil Rights Committees. Previously, Mr. Goren has served on the American Bar Association’s General Practice and Solo Section Diversity Committee, Illinois Standing Committee on Disability Law, Texas Bar Standing Committee on Disability Issues committee, and was a co-chair of The Civil Rights/Constitutional Law committee of the Chicago Bar Association. He received his B.A. from Vassar College, his J.D. from the University of San Diego, and his LL.M. in Health Law from DePaul University. Mr. Goren can be reached at wgoren@williamgoren.com.

1. Lawyers with disabilities are still not thought of in the same way as lawyers who bring other types of life experiences to the table, such as women, people of color, LGBT folks, and even parents. Why do you think that is? What exactly is it that lawyers with disabilities bring to the table?

W.G.: The answer to the first question is very simple. There are very few attorneys with known disabilities (though no doubt there are many that have chosen not to disclose for a variety of reasons).

By contrast, just think of high-profile lawyers who bring other life experiences to the table such as gender or racial diversity. Some instantly recognizable names come to mind like Gloria Allred or the late James Cochran. Yet try to think of a high-profile lawyer with a disability. Even on television dramas, there are few characters with disabilities. Michael J. Fox is one who has a recurring role on The Good Wife and that show also had a mobility-impaired judge on it, but it is an exception. On the silver screen, you would be hard pressed to see a lawyer with a disability, although Paul Newman in The Verdict is an interesting case because while a record of alcoholism or drug addiction is a disability under the ADA, a person who is a current user is not protected. In the movie, you’ll remember that Paul Newman was using alcohol. There’s also Tom Hanks’ Andrew Beckett in Philadephia (HIV-AIDS), who would be a person with a disability as defined by the ADA. Other than those examples, there are few, if any, others.

Also, unlike all the other groups, until now, there has been no national bar association of attorneys with disabilities. There are organizations for lawyers with other life experiences like the Hispanic Bar Association, the Asian Pacific Bar Association, and Bar Associations devoted to African-American attorneys. We need to demystify disabilities by raising awareness. As a result, I am actively involved with a group of like-minded attorneys that quite literally has just formed a National Association of Attorneys with Disabilities bar whose aim is to do for persons with disabilities what the other bar associations do for their communities.

The fact of the matter is that many Americans today have a disability as classified under the American with Disabilities Act. Each day can be a challenge for any one of them - whether it, by way of examples, getting dressed in the morning from the confines of a wheelchair or walking down a crowded city street guided by a seeing-eye dog. But those same challenges instill personal characteristics like perseverance, determination, and tenacity. In other words, the same exact qualities law practices and clients look for in an accomplished attorney.

Without doubt, lawyers with disabilities bring a unique and valuable perspective to the table and that perspective can provide critical assistance in certain areas of the law. For instance, my experience as an academic, lawyer, and a person with a disability enables me to provide unique insight into how the ADA actually works. As an example, the ADA prohibits pre-employment disability related inquiries. The unique combination of my personal knowledge coupled with my professional expertise gives me an edge in deciphering all the possibilities of what potentially could be a disability-related inquiry. No doubt, attorneys with disabilities can use their own experience to give them an edge in what they do as well.

S.P.: People aren’t familiar with our story as a community and how that narrative parallels the experiences of other minority groups in so many ways. In fact (over 20 years post-ADA) many people with disabilities themselves don’t think of themselves, don’t see themselves as a community with a shared history. There are many factors in play.

First, disability, impairment and health are seen as being an intensely personal experience. Unless you are a disabled veteran, you probably became disabled all on your own. Most often, our family members don’t share our “condition”. And disability presents the greatest empathetic challenge for others—we are getting better at imagining what it is like to be the minority race, minority sex or simply the stranger in a strange land. People have a much more difficult time imagining life without use of your limbs, without hearing or perhaps without sight—much less what they all have in common.

Medical and rehabilitation models of disability are still alive and well and have co-opted large segments of our community. Entire industries depend upon the notion that the disabilities are individual defects to be addressed by non-disabled “experts” curing the disability or rehabilitating the body. This is at odds with the notion of disability as a function of attitudes, policies and a built environment designed to exclude. While medical advancements has its place, imagine the state of racial diversity and inclusion if the prevailing answer to racial discrimination was to encourage people to just be more “white”?

When the disability movement was in its prime (in the 1970s and ‘80s) there was a greater sense that our community was like other minorities. I think this was because the physical separation and exclusion we experienced helped form natural communities. Ironically, there were more people with different types of disabilities attending special schools and camps for the disabled, and living in institutions, group homes and the like. We’ve achieved greater integration, but have lost our native communities and a measure of our collective identity. With the advent of social media, I think we are just starting to experience a renaissance of sorts.

Finally, I think legal constructs have done much to discourage a community vision of disabilities. For many, “disability” is simply a legal status—something you go on (workers compensation), sue someone over (personal injury) or get services and benefits for (Social Security, vocational rehabilitation). The cornerstone of disability civil rights, the ADA, has devolved into a byzantine and highly technical set of requirements perceived as business tax. So it wasn’t surprising when the initial draft of our own state bar diversity survey asked if you have a disability as defined by the ADA and asked only whether an accommodation was requested and received. Eventually we opted for a question that didn’t reference the ADA at all and we were pleasantly surprised at the high rate of self-disclosure we got by taking that approach—basically 21% of Washington state lawyers identify as having some sort of disability or other impairment. We need to rebuild/retell the narrative that allows folks to see the forest, not the trees—to see the ADA as a means to an end that we can all understand, identify with and embrace, and for disability to be something people feel free to identify with regardless of whether they meet some clinical or legal definition of disability.

What do lawyers with disabilities bring to the table? First and foremost we are just like other lawyers—smart, determined and creative as anyone else. We do bring a diverse perspective—often we understand the outsider perspective in a way that is particularly acute in a world that is otherwise growing more tolerant and diverse. Many of us understand in a profound way how law and policy can affect day to day life and our relations with others (whether or not you work, whether or not you get married, whether you live independently). People with disabilities often adapt and problem solve in a more intensely practical way than others—getting across town can require ingenuity, asking uncomfortable strangers for help requires chutzpah.

2. Does your disability affect the way other counsel, your colleagues, or your clients interact with you? What recommendations do you have for legal organizations to make these environments more welcoming to both lawyers and clients with disabilities?

S.P.: There is no question there is an impact, but I’ve never known exactly how much. During my first firm event as a summer associate in New York City in 1996, a fellow summer associate confessed that he was uncomfortable with my disability, but pledged to work through it. I can’t help but wonder if the same discomfort is at play, when I struggled for client access as an associate, or to build a book of business as a new partner. Most days you feel just like every other working Joe in the legal field, then someone will comment on how special or inspirational you are and you realize people can’t help but see you as different, as challenged in the basic act of going to work, supporting a family or representing your clients.

The most effective way mediate discomfort or lack of respect from others by being comfortable with and having respect for yourself. You have to be comfortable with your own disability and your role as an attorney. If you are comfortable and at ease—much more likely others will be too. I don’t mean that you have to pretend that the disability doesn’t exist—just that you are comfortable with it and confident that it doesn’t impact your performance. People may have questions—answer them. Don’t be defensive but put the disability in perspective. What they really want is good legal service – which you will provide in abundance.

I think the best thing legal organizations can do is to recognize people with disabilities as a welcome part of the diversity community. Ensure they are included in the diversity and inclusion efforts and talk about what that means. Don’t have the dialogue just with people with disabilities – the message of welcoming and inclusion needs to be made to people with and without disabilities. Show a sincere interest and a desire to engage. The “what” and the “how” will follow.

W.G.: We live in a different world today thanks to advances in modern medical technology. People with disabilities are able to interact with the world around them like never before. For example, for reasons unrelated to my deafness, I use voice dictation technology to access my computer. With respect to making the legal organization more welcoming for both lawyers and clients with disabilities, the key is two-way communication. In my case, although I have a congenital bilateral severe to profound hearing loss, I function entirely in the hearing world through the use of hearing aids as well as my command of the English language and lip reading. So, I am very upfront about my hearing loss to ensure that people do not misread my communication. For example, I let others know that they should not cover their mouths with their hands so that I can read their lips. Another example might be letting them know that I might be louder in certain situations than a hearing person, or that I might ask them to repeat themselves more than they might expect.

There are also concrete steps that legal organizations can take to make the environment more welcoming to both lawyers and clients with disabilities that I will list off:

  • Open communication is absolutely critical. Don’t assume what the client or the lawyer needs. Ask them first. You might be surprised at how easy and inexpensive the fix really is. Most reasonable accommodations/modifications are not terribly expensive. The Job Accommodation Network (JAN) reports that data collected suggest that more than half of all accommodations cost nothing. Furthermore, JAN’s statistics show that most employers report financial benefits from providing accommodations due to reduced costs in terms of insurance and training new employees and increased worker productivity.
  • A mentoring program for attorneys with disabilities is really critical.
  • Education is paramount. The firm or company needs to understand that the premise of the ADA is getting the person with a disability to the same starting line.

3. There are more and more law students with disabilities, thanks to the advancement in our understanding about how people learn and how academic programs can be modified without altering their rigor and the skills they are intended to develop and measure, in order to allow for different ways of learning and test taking. Are legal employers ready for this new population of lawyers? What do legal employers need to do in order to take advantage of this talent? And what advice do you have for these up and coming lawyers?

S.P.: Are we ready? Hard question. On one hand, our profession as a whole has a ways to go to embrace and include the legal professionals with disabilities already in their midst, and students with more profound disabilities that are now able to succeed in law schools will challenge old stereotypes and assumptions like never before (especially in a field that remains obsessed with image and impressions). At the same time, people have an almost religious faith in the equalizing power of technology and the diversity and inclusion movement seems, to me, particularly strong these days. If we have champions in the diversity community who are telling the disability story – there is good reason for hope.

What do they need to do? Taking advantage of this talent pool really doesn’t require more than an open mind, a welcoming attitude and willingness to engage. Really nothing other than what any other attorney is entitled to. There is no big preparation, no major investment, just a commitment to valuing people on their true merits and to putting aside rigid thinking and other baggage that gets in the way.

I think young up and coming lawyers with disabilities also need perspective. To get where they are, many have had battles with the Law School Admissions Test, law schools and bar examiners. As a result, I fear that students approach the employment landscape defensively, and so agonize over disability disclosure, accommodation requests, and social acceptance. To those students I’d say you need to take control and go on the offensive. To get employers to believe in you as a lawyer first and foremost, you must do that first yourself – it’s up to you to remind employers what really matters and to put everything else in perspective.

W.G.: We’ve come a long way but there’s so much more road to cover. And I’m afraid that legal employers aren’t ready for this new population of lawyers. A tremendous amount of education still needs to occur.

One of the biggest problems is the concern, which I have personally heard, “If I hire a person with a disability isn’t that a lawsuit waiting to happen?” The answer should be no, if the employer understands the law and ensures compliance with it. An attorney with a disability just wants to be evaluated on his or her own merit. Furthermore, consider the economic environment. The facts are that people with disabilities lag considerably behind people without disabilities with respect to employment. Therefore, an attorney with a disability who is given the opportunity will frequently prove more loyal just because they know how difficult it is to obtain a position in a welcoming environment.

As a profession, lawyers have strong reasoning and critical thinking skills. As far as what legal employers need to do in order to take advantage of this untapped talent of attorneys with disabilities, I believe that “outside the box” thinking is the ideal complement to our strong skill-set. To truly appreciate what attorneys with disabilities have to offer, a legal firm should look at a lawyer holistically in terms of their abilities – not just focus on their disabilities and/or class rank - in order to see how the “total” package can benefit the firm.

With respect to up-and-coming lawyers, my advice is:

  • Find a mentor. Even if that mentor is not in the law, having such a mentor can be a real confidence booster and give you an edge in a variety of different ways. I serve as a mentor in the American Bar Association’s Commission on Disability Rights National Mentoring Program for law students and young lawyers with disabilities.
  • Network, both virtually and in person. Find out whether your state or local bar has a lawyers with disabilities section or affinity group. Seek out former and current members of the National Association of Law Students with Disabilities.
  • Publish, publish, and publish.
  • When our National Association of Attorneys with Disabilities (NAAD) comes online - we expect to go operational very soon - join us!

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About the Author

Sherri Rita is the staff attorney/program specialist for the ABA’s Commission on Disability Rights.


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EDITOR-IN-CHIEF

Micah U Buchdahl, HTMLawyers, Inc

ISSUE EDITOR

Sherri, L. Rita, ABA Commission on Disability Rights

ASSOCIATE EDITOR

Andrea Malone, White and Williams LLP

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