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

ETHICS

Serving Clients with Disabilities: An Accessibility Guide for Law Firms

By Trevor Finneman and Michelle Uzeta

INTRODUCTION

Law offices, regardless of size, are places of public accommodations subject to the provisions of Title III of the Americans with Disabilities Act (ADA). Among other things, the ADA requires public accommodations to: (1) provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity, (2) eliminate unnecessary eligibility criteria or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services, and (3) make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided.

The ADA also requires that public accommodations ensure effective communication through the use of auxiliary aids and services, unless an undue burden or fundamental alteration would result. They must remove architectural and structural communication barriers in existing facilities where readily achievable, and provide goods and services through alternative measures when removal of barriers is not readily achievable. When public accommodations design and construct new facilities, or alter existing facilities, they must do so in accordance with the ADA Standards for Accessible Design (ADA Standards), 28 C.F.R. pt. 36, app. A.

This article provides an overview of a law office’s obligations to clients with various categories of disability: sensory, mobility, cognitive and mental health, and best practices for accommodating clients with such disabilities.

Sensory Disabilities

Communicating with clients, either verbally or in writing, is a core aspect of the practice of law. The main two types of sensory disabilities that lawyers will encounter are vision disabilities and hearing disabilities. Different disabilities require vastly different accommodations and auxiliary aids to be able to meaningfully participate in a meeting or deposition.

When working with a client with a disability, wait until you are asked to provide an accommodation or auxiliary aid. Do not unilaterally offer or provide an accommodation, except where the need is obvious. Use tact when discussing accommodation needs. Do not make unnecessary inquires regarding the nature and extent of disability. However, you may request documentation to confirm disability and demonstrate “nexus” for a particular accommodation where appropriate.

Clients should never be billed for the cost of the accommodation or auxiliary aid. However, a particular accommodation is not required if it is a fundamental alteration of your services or if it imposes an undue burden.

Hearing Loss

Hearing loss is a communicative disability. The goal of accommodations for deaf or hard-of-hearing clients is to improve the client’s reception of verbal information. Lawyers must provide “auxiliary aids and services” to ensure “effective” communication for individuals with a hearing loss. Examples of auxiliary aids include American Sign Language interpreters or the exchange of written notes.

Which auxiliary aid is appropriate is based on an individualized standard. The communication must be effective for your specific client in the specific situation. Because hearing loss can range from mild to profound, auxiliary aids that are successful for hard-of-hearing clients (those with more mild hearing loss) may not be successful for deaf clients with a profound hearing loss. The best auxiliary aid will depend on the particular individual and their type of hearing loss. For example, a deaf client’s first language may be American Sign Language, so exchanging notes written in English may not ensure effective communication. In that context, an American Sign Language interpreter may be the best option. However, a deaf client may actually prefer CART. 

The same auxiliary aid may be appropriate in one setting but may not work in another. This is because clients who are hard-of-hearing may hear only certain frequencies. The acoustics of a room, such as an office or courtroom, may make it dramatically more difficult for a hard-of-hearing client to hear dialogue. A change in setting may result in a change in your client’s preferred auxiliary aid. To ensure effective communication, be sure to work with the client to determine what auxiliary aid or accommodation best ensures effective communication in any given setting. Some popular auxiliary aids include:

  • American Sign Language Interpreters – Interpreters should be certified by the Registry of Interpreters for the Deaf. Interpreters used for legal proceedings, such as depositions, should have a Specialist Certificate: Legal (SC:L) certification. Interpreters with the SC:L have “demonstrated specialized knowledge of legal settings and greater familiarity with language used in the legal system.” Family members or friends of the client who also know Sign Language should not be used to interpret except in emergencies or when specifically requested. Communications should be directed to the client. Never direct questions or comments to an interpreter.
  • Communication Access Real-time Translation (CART) – Congress recognized CART as an auxiliary aid for effective communication. CART uses technology similar to that which is used in court and depositions to transcribe verbal communications into a written transcript. CART is instant translation of the spoken word into English text using a stenotype machine and a laptop equipped with real-time software. A transcript of spoken dialogue and sounds is displayed on the laptop screen for the client to read. The National Court Reporter’s Association maintains a database of CART providers.

When working with an ASL interpreter or CART provider, be sure to speak at a comfortable pace. If the client meeting or deposition will last longer than 90 minutes, two interpreters may be required to prevent fatigue. Where possible, share meeting agendas and technical vocabulary and the like in advance with the interpreter or CART provider. This will allow the interpreter or CART provider to become more familiar with the subject matter. Open communication with the client and interpreter or CART provider before the meeting is the best way to ensure effective communication during the meeting.

Vision Disabilities

When working with a client that has a visual disability, it is a good practice to ask the client how he or she wants to receive the information. The accommodations and auxiliary aids that are most effective for a client with a vision disability depend on the client’s remaining vision and on how the client prefers to receive information. Clients with visual disabilities may require printed materials in a different format. However, some clients with visual disabilities absorb information better when presented aurally. These clients may utilize screen reading software that reads text aloud. Others may be visual learners who prefer written materials. Visual learners will often use text magnification software to access the written materials. Each person is unique, so an accommodation that works for one client with a visual disability may not work for another client. 

Provide written materials to a client with a visual disability well in advance of a meeting or deposition. This will give the client time to review the documents before the meeting. Be mindful of the font and appearance of written or electronic materials. Arial and Calibri are the most accessible fonts. Word processor documents – those in text, Microsoft Word, or Word Perfect – are accessible. However, PDF documents can be problematic for clients with visual disabilities. Scanned PDFs are not accessible to clients who use screen readers. However, PDFs converted from text, Microsoft Word, or Word Perfect are most accessible. Likewise, scanners equipped with optical character recognition (often called OCR) may produce accessible PDFs.

Some clients may not have access to computer-based auxiliary aids. In this instance, other auxiliary aids may be required. Some clients may prefer Braille materials. Others prefer the use of qualified readers or audio recordings. Because each person and disability is unique, accommodations and auxiliary aids should not be subject to a one-size-fits-all approach. Communicate with your client to see what works best for him or her.

Mobility Disabilities

Many individuals with mobility disabilities, and particularly those who use mobility aids such as wheelchairs or walkers, are unable to independently use public facilities – including law offices – that are not designed and/or constructed in compliance with the scoping and technical requirements of the ADA Standards.

Full compliance with the ADA Standards is required only for newly constructed and altered law offices. For existing law office facilities, the ADA Standards provide that architectural barriers must be removed where such removal is “readily achievable”—in other words, easily accomplished and able to be carried out without much difficulty or expense.

Neither the ADA nor its implementing regulations define, with any specificity, how much effort or expense is required to meet the readily achievable barrier removal obligation, as this determination must be made on a case-by-case basis, taking into consideration such factors as the size, type, and overall financial resources of the facility, and the nature and cost of the access improvements needed. The ADA’s implementing regulations and DOJ’s technical assistance materials do, however, provide some guidance as to the types of barrier removal that are readily achievable, for example: installing ramps; rearranging tables, chairs and other furniture; installing grab bars in toilet stalls; insulating lavatory pipes under sinks to prevent burns; and creating designated accessible parking spaces. Additionally, the regulations recommend priorities for barrier removal: (1) providing access to your business from public sidewalks, parking areas, and public transportation; (2) providing access to the goods and services your business offers; (3) providing access to public restrooms; and (4) removing barriers to other amenities offered to the public, such as drinking fountains. When evaluating the need for and feasibility of barrier removal, the DOJ’s guidance is instructive.

It is important to keep in mind that the readily achievable barrier removal obligation is an ongoing and affirmative obligation – applicable to both landlords and lessees – and should be evaluated on an annual basis. What is readily achievable in any given year will change with the economy and your degree of success. Federal tax incentives are available to help cover costs of making access improvements for customers with disabilities: (1) A tax credit - for small businesses who remove access barriers from their facilities, provide accessible services, or take other steps to improve accessibility for customers with disabilities (see Internal Revenue Code § 44); and/or (2) A tax deduction - for businesses of all sizes that remove access barriers in their facilities or vehicles (see Internal Revenue Code § 190).

When barrier removal is not possible and/or required, alternative means of making goods and services must be provided. For example, if your office is not accessible, and cannot be made accessible through readily achievable barrier removal, offer to meet clients with mobility disabilities in an alternate location. Under no circumstances should you represent your law office as accessible when it is not.

Cognitive Disabilities

Communicating successfully with clients is an essential part of doing business as a lawyer. When serving a client with a cognitive disability, you may have to adjust how you would normally communicate or relate information in order to effectively facilitate understanding. Individuals with cognitive disabilities often experience functional difficulties with memory, problem-solving, attention and/or reading, linguistic, and verbal comprehension. Accommodating such difficulties takes individualized planning, and should be the result of an interactive process.

Have conversations early on with your client about his or her preferences for communicating and sharing information. Although arguably not required under Title III, it is nonetheless good practice to give “primary consideration” to your client's choice of accommodation, as he or she is clearly in a better position to know what will or will not work under his or her particular circumstances. Unless it would constitute an undue burden, or fundamentally alter the nature of your goods and services, the client’s choice of accommodation should be provided.

Accommodations a lawyer might provide to address challenges presented by a client’s cognitive disability include:

  • Memorializing conversations and agreements in writing.
  • Creating and sharing lists of action items.
  • Avoiding legalese – presenting information in a clear, concise, concrete, and simple manner.
  • Repeating information as necessary, using different wording or a different communication approach.
  • Allowing time for information to be fully understood.
  • Breaking down information or activities into small steps and presenting tasks sequentially.
  • Using pictures or simple photographs to identify people, rooms, tasks or directions.

Lawyers should assume a client with cognitive disabilities is legally competent. The client should be presumed able to sign documents, vote, consent to medical care and sign contracts. Questions, comments, or concerns should be directed to the client, not to their companion, spouse or parent. When accommodations are necessary, implement them respectfully, recognizing the client as an individual and adult.

Mental Health Disabilities

Developing and maintaining the trusting and cooperative relationship necessary to effectively represent a client with a significant mental disability can be challenging. Mental health disabilities are characterized by severe disturbances of behavior, mood, thought processes and/or social and interpersonal relationships, and may require accommodation during the course of the attorney-client relationship. The prevalence of co-existing conditions or circumstances – such as addiction, poverty and homelessness – add to the challenges you might encounter. Pushing yourself to see beyond stereotypes and stigma, and taking the time to build trust and maintain open communication with your client is the key. 

Strategies for Communication – There is no “one-size fits all” approach for effectively communicating with and representing individuals with mental health disabilities. Each individual will differ in terms of ability, severity of symptoms and life circumstances. The following are therefore simply suggestions for strategies that may work in some instances:

  • Maintain eye contact.
  • Use short, concise and directive sentences.
  • Use a quiet room for meetings.
  • Be flexible in meeting times and locations and cognizant of transportation issues your client may have.
  • Allow the client to include a significant other in meetings to help facilitate communication and trust. *Be cautious, however, of any implications this may have concerning client privilege.
  • Have the individual repeat what has been said and/or take notes.
  • Outline expectations clearly and establish timelines for tasks.
  • Keep discussions goal directed; prepare agendas for meetings.
  • Don’t ask the client to make important decisions abruptly, or to make multiple decisions at once.
  • Establish a structure for communication and contact, keeping in mind limitations your client may have due to his or her income restrictions and functional limitations. Set boundaries with your client when necessary, by asking him or her to call only at designated times (e.g. set a weekly or monthly check in call), or to communicate with you only in writing (a last resort).

Occasionally, a client may exhibit behaviors that pose a direct threat to the health or safety of you or others in your office. A "direct threat" is defined for purposes of the ADA as “a significant risk . . . that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”  In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence. Assumptions, stereotypes and/or subjective fears and biases will not suffice.

If a client presents a genuine safety concern, consider establishing have general safety policies and procedures for your office (E.g. policies regarding when and where meetings may take place, appropriate methods of communication with clients, etc.).

CONCLUSION

The presence of a disability may pose unique challenges for both clients and lawyers navigating the attorney-client relationship. Ensuring that individuals with disabilities have equal access to your law practice requires planning, flexibility, a willingness to communicate and knowledge of the law.

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About the Author

Michelle Uzeta is the Legal Director at the Disability Rights Legal Center in Los Angeles, CA.
Trevor Finneman is a Staff Attorney with Disability Rights Legal Center in Los Angeles, CA


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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

BOARD OF EDITORS

John D. Bowers, Fox Rothschild LLP

Barbara H. Brown, Meagher & Geer PLLP

Margaret M. DiBianca, Young Conaway Stargatt & Taylor, LLP

Rodney Dowell, Lawyers Concerned for Lawyers, Inc.

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Nancy L Gimbol, Eastburn & Gray

Richard W Goldstein, Goldstein Patent Law

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Elizabeth Henslee

William D Henslee, Florida A&M Univ College of Law

George E. Leloudis, Woods Rogers PLC

Allison C. Shields, Legal Ease Consulting, Inc.

Gregory H. Siskind, Siskind Susser, P.C.

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