19The Pennsylvania Lawyer May/June 2014

AffordingEqual Accessto Justice

The lawyer’s responsibility to clients with disabilities

Alawyer’s legal duty to provide equal access toservices for individuals with disabilitiescomes from the Americans with DisabilitiesAct (ADA). The ADA prohibits discrimina-tion against individuals having one or morephysical or mental disability in employment,public services and public accommodations

and services operated by private entities, aka public ac-commodations. Under the ADA, a public accommoda-tion explicitly includes law offices. Solo practitioners,small law firms and large law firms are all covered entitiesunder the ADA.

Discrimination under the ADA includes failing to takethe steps that may be necessary to afford individuals withdisabilities equal access to the services enjoyed by individ-

uals without disabilities. Physical-access or architecturalbarriers to a lawyer’s services may arise for individualswith mobility-related disabilities. Under the ADA, alawyer’s duty includes taking steps to remove such barriersor making his or her services available through alternativemethods if barrier removal is not readily achievable.

For example, where a law office is not physically accessiblebecause the lawyer’s building lacks an elevator, the lawyersin that firm can meet their obligation by arranging toconfer with the client in a space that is accessible, such as at a bar association building or another lawyer’s office.

The Pennsylvania Human Relations Act similarly pro-hibits discrimination by public accommodations, includ-ing law offices, on the basis of disability.

By Andrea C. Farney and Dynah Haubert

Necessary steps a lawyer must take to af-ford equal access to individuals with dis-abilities also include the duty to providewhat are referred to as “auxiliary aids andservices.” Examples of auxiliary aids and services are providing qualified interpreterson-site or through video remote interpret-ing services for individuals who are deaf orhard of hearing and qualified readers orlarge-print materials for individuals whoare blind or have limited vision. A lawyermay not charge an individual with a dis-ability for the cost of providing an auxiliaryaid or service such as an interpreter. Twoexceptions to this rule place the responsi-bility on the lawyer to show “undue bur-den” or a fundamental alteration of service.Overall financial and other resources of thebusiness are the primary factors in anundue-burden determination. Where theundue-burden test is met by the law office,the lawyer still must provide an alternativeaid or service where one exists.

Professional ResponsibilityAffording persons with disabilities equal access to the lawyer’s services is not only amatter of federal and state law but also ofprofessional responsibility. For example, to fulfill his or her obligations under Penn-sylvania Rule of Professional Conduct 1.4regarding communication, a lawyer mustprovide auxiliary aids and services whennecessary for effective communication witha client.

While straightforward matters such asscheduling an appointment with a deaf orhard-of-hearing client may be accom-plished by passing written notes or ex-changing email, the more complexcommunications that Rule 1.4 requiresshould be conducted using the client’s pre-ferred method of communication.

Equal Access for the Deaf or Hard of HearingEnsuring effective communication is themost critical aspect in a lawyer’s meetinghis or her legal and ethical duty to affordequal access to representation for potentialclients who are deaf or hard of hearing.Many deaf or hard-of-hearing individualsuse a video-relay phone service to calllawyers for service. The call comes in justas any other, with the difference being thata third-party interpreter will be on the lineas well. There is no additional charge forthe phone call. During this initial call, aswith other initial contacts, the lawyer (or designated assistant) should find outwhat type of service the potential clientneeds and whether there is any conflict ofinterest and provide information on anyconsultation fee or other aspects of thelawyer’s regular intake process. All of thiscan be handled through the initial video-relay call.

Where the potential client’s matter is onethe law office normally handles, there is anobligation to ensure that the potentialclient has the same opportunity to hire thelawyer’s services as an individual who is notdeaf or hard of hearing. This typically re-

The Pennsylvania Lawyer 20 May/June 2014

Discrimination under the ADA includes failing to take the steps that may be necessary to afford individuals with disabilities equal access to the services enjoyed by individuals without disabilities.

21

quires that the lawyer obtain a qualifiedsign-language interpreter to meet with thedisabled person to discuss the case, the representation agreement and the ongoingplan of action.

Because there are different sign-languagesystems used by persons who sign, askingthe disabled person is the best way to deter-mine what type of interpreter will suffice.This should be done during the initial con-tact, especially where the potential clientmakes first contact through a video-relayservice or via email. Questions to ask theclient include the following: Do you useAmerican Sign Language (ASL) or signedEnglish? Do you know of an interpreterservice in the community? This is impor-tant because not all individuals who aredeaf use ASL. In circumstances where anindividual who is deaf or hard of hearingwalks into the lawyer’s office for first con-tact, the lawyer should ask immediatelyabout the use of a sign-language inter-preter. This can be done in writing.

Finding a Qualified Sign-Language InterpreterA lawyer should not require a potential client with a disability to bring another in-

dividual to interpret for him or her becausethe companion is likely not qualified. Fam-ily members, friends and close associatesmay have emotional ties, conflicts of inter-est or personal involvement that can inap-propriately affect the accuracy, impartialityand effectiveness of the communication.Confidentiality is also compromised.

The Sign Language Interpreter andTransliterator State Registration Act, 63P.S. §1725.1 et seq. (Act 57) requires thatsign-language interpreters be registeredwith the commonwealth in certain circum-stances. Lawyers can find these certified interpreters by using the website of thePennsylvania Office for the Deaf and Hard of Hearing (ODHH) at www.odhh.state.pa.us. The ODHH also has a listingof organizations around the common-wealth that can provide resources and technical assistance for locating a qualifiedsign-language interpreter.

Paying for a Sign-Language InterpreterOne of the many benefits of PBA member-ship is access to the Sign Language Inter-preter/CART (Communication Access Realtime Translation) Fund. The fund isavailable to all PBA members. It providesreimbursement of up to $150 for an inter-preter used to meet with a client. Typically,interpreters charge a minimum fee for atwo-hour appointment. While rates vary,the common range is $50 to $75 per hour,plus mileage. A PBA member is eligible toapply for reimbursement from the fund forup to two client appointments per quarteruntil the fund is exhausted.

Duty to Individuals with Mobility DisabilitiesClients with mobility impairments may have a variety of access needs that must beaccommodated in order to afford equal ac-cess to a lawyer’s services. Many of these ac-commodations are simple and needn’t becostly. For example, rearranging office fur-

The Pennsylvania Lawyer May/June 2014

One of the many benefits of PBA membership is access to the Sign Language Interpreter/CART Fund, providing reimbursement of up to $150 for an interpreter used to meet with a client.

The Pennsylvania Lawyer 22 May/June 2014

niture may allow a wheelchair-using clientto enter easily. Other accommodations re-quire a bit more out-of-the-box thinkingbut needn’t be difficult — such as arrang-ing for a place to meet outside of thelawyer’s office if the office cannot be madeaccessible or visiting a client at his or herhome. Even structural changes to a lawyer’sbuilding to improve access may not be pro-hibitively costly, thanks in part to federaltax incentives, and will improve access formany future clients.

To determine what accommodationsclients or potential clients need, communi-cation about their access needs is key.Nondisabled lawyers may fear that askingclients about their disability-related needsis intrusive or uncomfortable for theirclients. While disability-related inquiriesthat are not relevant to the representationmust be avoided, ascertaining what a clientneeds in order to work effectively with hisor her lawyer is of utmost importance.

Knowing how best to adapt to a client’sneeds before the meeting takes place is thebest way to ensure prompt, effective serviceand a comfortable atmosphere for theclient. Clients with disabilities are the ex-perts on their needs and what accommoda-tions are effective for them. Asking themhow the lawyer can best meet their accessneeds is the best way for the lawyer to af-ford equal access. Ask if the client needsany disability-related accommodations tomeet and communicate with you and yourstaff. Identify barriers and communicateabout them to clients. For example, if theoffice has no dedicated parking close to theoffice, ask if this will pose a barrier. Be pre-pared to suggest alternatives or brainstormwith the client on how to meet a need orremove a barrier.

Clients with disabilities are the experts on their needs and what accommo-dations are effective for them. Asking them how the lawyer can best meettheir access needs is the best way for the lawyer to afford equal access.

Resources

Information and reimbursement forms for the PBA Sign Language

Interpreter/CART Fund can be found on the PBA website at

www.pabar.org/public/committees/disabili/Sign%20Lang.pdf or

by contacting Louann Bell, staff liaison for the PBA Legal Services

to Persons with Disabilities Committee, at 800-932-0311, ext. 2276.

The Disability Rights Network of Pennsylvania (DRN) is a statewide,

nonprofit corporation designated as the federally mandated organiz-

ation to advance and protect the civil rights of adults and children with

disabilities. DRN can provide technical assistance to lawyers who have

questions about serving clients with disabilities. DRN can be reached at

800-692-7443 (voice) or 877-375-7139 (Telephone Device for the Deaf or

TDD). The email address is intake@drnpa.org.

Information on federal tax incentives that can help cover costs of

accessibility improvements is available at www.ada.gov/taxincent.htm.

23The Pennsylvania Lawyer May/June 2014

It is also important to be flexible. No mat-ter how carefully a lawyer has discussed ac-commodations with a client before ameeting, last-minute challenges may arise.A doorway that didn’t seem to be a prob-lem may be too narrow for a wheelchair-user to get through; an elevator might beout of service; or the weather may havemade the sidewalk too slippery for some-one unsteady on his or her feet. Being flexible with how and where a lawyermeets with clients, including having an alternative meeting location prearranged,can allow a lawyer to serve disabled clientswith minimal delay, even when unexpectedbarriers arise.

Many barriers to access have simple reme-dies. For example, removing a guest chairin a lawyer’s office may allow a client in a wheelchair to enter the office or helping a client who may need assistance openingdoors to get into the office. Other barriersmight not be so easily removed. In thiscase, arranging to meet a client at an accessible location allows a lawyer to provide equal access to his or her services.Possible locations may include offices ofother lawyers, the PBA, county bar associa-tion offices, community spaces such as libraries or community centers, even theclient’s home.

Networking with other lawyers andreaching out to identify other local spaces that are accessible meeting places allow lawyers to have alternatives at theready when scheduling a consultation. Of course, communication with the clientis key to ensure that the alternative spacewill be accessible. ⚖

• • • • •

Andrea C. Farney is a partner at Triquetra Law, a boutique law firm representing and counselingindividuals in employment andcivil-rights matters. She focuses on diversity issues and improvingrepresentation for individuals withdisabilities. She is chair of the PBALegal Services to Persons with

Disabilities Committee and a member of the PBA Minority BarCommittee and Commission on Women in the Profession. She canbe reached at farney@triquetralaw.com.

Dynah Haubert is a staff attorney in the Harrisburg office of the Disability Rights Network of Pennsylvania, a statewide, nonprofit corporation designatedas the federally mandated organization to advance and protect the civil rights of adults and children with disabilities.

If you would like to comment on this article for publication in ournext issue, please send an email to editor@pabar.org.

Affording persons with disabilitiesequal access to a lawyer’s services is not only a matter of federal and state law but also of professional responsibility.

Farney

Haubert Call 800-932-0311,

ext. 2276

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