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Rachel Arfa

Staff Attorney

Equip for Equality

Chicago Bar Association

Legal Aid Committee Meeting

October 17, 2013

Is Your Office ADA Compliant? Legal Requirements and Practical Tips for Representing Clients with

Disabilities

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Applicable Laws: the ADA

• Americans with Disabilities Act of 1990, as amended (2008)

• Prohibits discrimination on behalf of people with disabilities

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Illinois law on providing equal access for clients with disabilities

• Illinois Attorneys have an obligation to comply with state and local anti-discrimination laws in representing clients with disabilities including: Illinois Human Rights Act Cook County Human Rights Ordinance Chicago Human Rights Ordinance

• Illinois Supreme Court Rules of Professional Conduct for Attorneys

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Titles of the Americans with Disabilities Act

Title I: Prohibits discrimination on the basis of Employment

Title II: Prohibits discrimination by state and local government services

Title III: Prohibits discrimination by places of public accommodation

Title IV: Requires and regulates telephone relay services

Title V: Misc. provisions including retaliation protections

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Americans with Disabilities Act

• Today’s focus is on Title III: Lawyer’s services and offices are considered a place of public accommodation under Title III

• Title II: state and local government entities are required to provide accommodations for parties with disabilities – often attorneys will need to advocate to ensure this access is provided Illinois Attorney General’s Disability Rights

Bureau is a good resource

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Obligation under ADA when representing a client with a disability

• Title III of the ADA provides that a public accommodation “…shall take steps 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…”

• Attorneys are considered a public accommodation and must provide accommodations. 42 U.S.C.§12181(7)(F)

• Public accommodations “…shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. §36.303 (c)(1)

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Everyone in your organization is responsible for ensuring equal access

• Attorneys have ethical obligation under RPC 5.3(a) and (b)

• RPC 5.3(b), “A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”

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This obligation includes:

• RPC 5.3 Comments define assistants as: secretaries, investigators, law student interns, paraprofessionals

• Assistants, whether employees or independent contractors act for the lawyer in rendition of the lawyer’s professional services

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How to make sure you’re accessible from the start:

• Train your support staff on: How to communicate with people with disabilities. Explain obligations to be accessible under the

Americans with Disabilities Act How to accept and conduct video relay calls and

TTY calls from deaf and hard of hearing clients. It is illegal to say “we don’t provide sign language interpreters.”

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How to make sure you’re accessible from the start (cont):

• Provide forms in alternative format for blind and visually impaired clients, offer to assist in completing form, don’t ask a visually impaired person to use a sign in sheet if he/she is unable to read without assistance

• When providing referrals to other organizations or online sources, check to see if the information is easy to find and/or lists a contact person

• The person may need an accommodation and if that information is hard for you to find, the client will likely have difficulty finding it too

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• Evaluate your website – ADA and RPC rules require equal access Are all videos captioned or have a

transcript? Are transcripts provided with podcasts? Are online forms offered in alternative format

or downloadable using MS Word?

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How to make sure you’re accessible from the start (cont):

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When representing a client with a disability

• Ask what kind of accommodations the person needs What accommodations do you need? What do you need for us to communicate?

• Do not assume you know best what kind of accommodations the person needs

• Do not assume that another person you met with the same disability means this person needs the exact same accommodation

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DOJ Complaint filed v. Attorney for not providing right accommodations

• Attorney represented deaf woman, did not use sign language interpreter when meeting with her.

• Divorce case, where wife also experienced domestic violence in marriage

• Attorney-client meetings: Deaf client did not understand what was discussed

• Attorney at times used client’s sister (who was also not a qualified interpreter) to interpret

http://www.ada.gov/tirone.htm

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DOJ Complaint filed v. Attorney for not providing right accommodations

• To communicate, attorney also used pen and paper, fax, lipreading and the relay service when communicating by phone. These methods took longer than if a qualified sign language interpreter had been provided, which resulted in higher attorneys fees to client.

• DOJ investigation found that attorney failed to provide client with effective communication.

• Attorney was ordered to pay a fine and waive all attorneys fees owed.

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Attorney role as Advisor

• RPC 2.1: Role as advisor, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”

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Attorney as Advisor Comments

• Consider social factors Example- representing deaf and hard of hearing

clients Wide range of identity among deaf and hard of

hearing community Some deaf people communicate by speaking and

lipreading, while others use American Sign Language – which can result in distinct life experiences and attitudes

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RPC 2.1 Comments Social Factors continued

• Be aware of cultural differences

• Societal factor: many deaf persons graduate from high school reading at a fourth grade reading level

• Will need assistance in breaking down legal terminology

• Ex. - Be sure not to simply read settlement agreement – language may be too advanced. Instead, break down what it means.

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Attorney responsibility to keep information confidential

• RPC 1.6 Confidentiality: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…”

• Discuss with client before revealing information

• Frequently, clients with disabilities have information about them shared without consent, such as to a family member

• Hidden disabilities: clients with hidden disabilities may want to keep their disability confidential

• Others may want to keep disability related information confidential, even if disability is obvious

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Obtaining Informed Consent

• RPC 1.4: “A lawyer shall promptly inform the client of any decision or circumstance with respect to which the client’s informed consent…is required…”

• Ex: Explain important provisions in legal documents

• If a client has minimal language, use appropriate accommodations and review the agreement to ensure that you have informed consent

• If client has visual impairment, provide document in accessible format, read document

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Questions?

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Rachel Arfa

Staff Attorney

Equip for EqualityRachela@equipforequality.org

312-278-7001 (VP)

Is Your Office ADA Compliant? Legal Requirements and Practical Tips for Representing Clients with

Disabilities

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