With approximately 220,000 deaf
people residing in the State of Utah,
it is likely that at some point a deaf person may seek your legal services.
Being the only practicing deaf
attorney in Utah
that I am aware of, I would like to share some suggestions on how to best
represent deaf clients and how to meet your ethical and legal obligations when
representing them.
It begins by understanding that
the Americans With Disability Act (“ADA”)
governs you and your firm’s representation of anyone with a disability,
including deaf and hard of hearing individuals. A person becomes a protected
class under the law when there is “a physical or mental impairment that
substantially limits a major life activity” such as walking, seeing, hearing,
breathing, learning, reading, concentrating, thinking, communicating, and
working. 28 C.F.R. § 36.104.
There are five sections to the ADA. Title I covers employment. Title II applies to
public entities such as state and local governments. Title III applies to
places of public accommodations such as football stadiums, businesses and
restaurants. Title IV covers Telecommunications. And Title V deals with
miscellaneous items.
Attorneys working in a small law
firm frequently assume that there must be minimum number of employees in the
firm in order to be subject to the ADA.
The law, however, is much more inclusive. Although Title I of the ADA
contains language covering businesses of a certain size, Title III of the ADA does not limit the
law’s coverage to an entity of any particular size. As a result, whether you
are in private practice as a sole practitioner, or whether you are part of a large,
high-profile law firm, both are considered as places of “public accommodation”
and therefore both are forbidden from discriminating against people with
disabilities, including clients who are deaf or hard of hearing. 42 U.S.C. §
12182. Even if your law firm is a non-profit organization, you are not exempt from
the ADA.
The next step is to understanding
the ADA is to know that one of the major goals
of the ADA is
to ensure that “effective communication” takes place between an attorney and any
client with disabilities. Law firms of any size are deemed to be “Public Accommodations,”
and as such, they are required to provide “auxiliary aids and services” to
qualified individuals with a disability in order to satisfy the law’s
requirement to provide effective communication. “Auxiliary aids and services”
are modifications of existing services, benefits, equipment or devices so as to
provide effective communication to individuals with disabilities.
Title III of the ADA requires lawyers to “make
reasonable modifications in policies, practices, or procedures, when the
modifications are necessary to afford services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless they can
demonstrate that making the modifications would fundamentally alter the nature
of the service or facility.” 28 C.F.R.§ 36.302.
Under the ADA, auxiliary aids and
services may include “qualified interpreters, note-takers, computer-aided transcription
services (“CART”), written materials, telephone handset amplifiers, assistive
listening devices and systems, telephones compatible with hearing aids, closed
caption decoders, open and closed captioning, telecommunications devices for deaf
persons (“TDD’s”), videotext displays, or other effective methods of making
aurally delivered materials available to individuals with hearing impairments.”
[See 28 C.F.R. § 36.303 (b)(1).] Attorneys sometimes operate under the
misconception that the list provided above under Title III of the ADA means that the lawyer
can selectively choose the aid or service the attorney will provide. That is
not true.
Please understand that even though
Title III of the ADA provides that “the ultimate decision as to what measures
to take rests with the public accommodation” in order to obtain effective
communication with their client they “should consult with individuals with
disabilities whenever possible to determine what type of auxiliary aid is
needed to ensure effective communication.” 28 C.F.R. § 36.301(c).
Consulting with the client about the
specific auxiliary aid and services he needs is essential in meeting the ADA’s goal of achieving
effective communication, and your goal of providing the best representation possible
for your disabled client. Primarily because the “type of auxiliary aid or
service necessary to ensure effective communication will vary in accordance
with the method of communication used by the individual; the nature, length,
and complexity of the communication involved; and the context in which the communication
is taking place.” 28 C.F.R. § 36.303(c)(1)(ii).This requires that you learn
from the client the type of aid or service that works for them.
Additionally, in order for
effective communication to take place, “auxiliary aids and services must be
provided in accessible formats, in a timely manner, and in such a way as to
protect the privacy and independence of the individual with a disability.” Id.
Often times, a deaf or hard of
hearing client will request an American Sign Language (ASL) interpreter. Other
deaf or hard of hearing individuals may request a Cued speech interpreter.
These are the most common requests that you can expect to receive when
representing a client with a hearing loss. Having a qualified interpreter will not only
help the client, but will be of invaluable benefit to you as well.
One thing you should know about deaf
and hard of hearing individuals is that they do not all have the same
communication needs. Some can communicate in English, while others use ASL, and
yet others communicate through Cued Speech – all of which are different from
each other. That is why you must learn from the client the type of interpreter
they will need. Don’t assume that deaf
clients need an ASL interpreter. They
may in fact need a Cued speech interpreter, or no interpreter at all. If the client doesn’t tell you what his
communication needs are, take the initiative and have an open dialogue about the
best method to communicate during the initial interview. Periodically check if
the accommodations are working for the client.
Proper communication is
absolutely essential to effectively represent deaf and hard of hearing clients.
Refusing to hire a sign language interpreter may constitute discrimination
under the ADA. Discrimination occurs when there is “a failure
to make reasonable modifications in policies, practices, or procedures, when
such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities”
unless the place of public accommodation “can demonstrate that making
such modifications would fundamentally alter the nature of such goods,
services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii).
Other examples of potential acts
of discrimination under the ADA
include: instances where the attorney agrees to provide an interpreter but
fails to schedule one, or where an attorney asks a deaf or hard of hearing
client to bring a family member to interpret for them.
Under Title III of the ADA, you cannot simply
use someone who claims to know how to interpret for a deaf or hard of hearing
person, because having the ability to sign does not mean the individual has the
ability to interpret. Attorneys are required to provide qualified interpreters
to their Deaf clients and patients. A qualified
interpreter means an “interpreter who, via a video remote interpreting (“VRI”)
service through on-site appearance, is able to interpret effectively, accurately,
and impartially, both receptively and expressively, using any necessary
specialized vocabulary. Qualified interpreters include, for example, sign
language interpreters, oral transliterators, and cued-language
transliterators.” 28 C.F.R. § 36.104.
Attempting to use a client’s
family member, friend or neighbor who claims to know ASL leads to a minefield
of problems for you and your client. They may be too emotionally or financially
involved to provide a fair and accurate interpretation of what your client has
said to you. Furthermore, an unqualified interpreter will not have to abide by
ethical constraints required of a qualified interpreter. Additionally, using an
unqualified interpreter may destroy the privilege of confidential
communication. Finally, not using a qualified interpreter may expose you or the
unqualified interpreter to liability.
Using a qualified interpreter is
the only way to avoid these and other unforeseen problems. Doing so will not
disrupt attorney-client privilege.
Additionally certified interpreters are bound by a code of ethics that
require the interpreter to keep the attorney client communication confidential,
and that they be neutral in any matter that they are
The best way to find a qualified
interpreter is to contact an interpreting agency who can assist you in finding
the right interpreter for you and your client. It is important to mention that
you will not always need to hire an interpreter for every interaction or
communication with a deaf client. Hiring an American Sign Language interpreter
applies for both potential clients as well as current clients. If you are
unsure as to the need for an interpreter, ask yourself if the information you
need to share with your client needs to be done in person, face to face, or whether
it can be done via e-mail, fax, or letter. If you need to share information
face to face, then you should hire an interpreter.
When you meet with your deaf or
hard of hearing client and an interpreter is present, you should look at and
speak directly to your deaf client, not the interpreter, even though the deaf
client will be watching the interpreter. When your deaf client speaks to you,
look at your deaf client even though your client is signing and listening to
the interpreter. Remember, the interpreter
is only facilitating communication between you and your deaf client. You are not communicating with the
interpreter.
If a deaf person is nodding their
head during a conversation, it could mean that they are acknowledging that they
understand what is being said, or it could mean it is an affirmative agreement
or a “yes” response. Please make sure
you clarify why they are nodding their head.
Sometimes attorneys find that
when they make a simple statement, such as “I don’t believe the officer had
probable cause to search your car,” the interpreter will take additional time
in interpreting to elaborate the meaning of certain legal words or phrases to
help the client understand what you have said. Often times, legal vocabulary
cannot be easily interpreted into ASL.
In some cases, especially in
criminal matters, you may have to hire a Certified Deaf Interpreter (“CDI”.) The Registry of Interpreters for the Deaf (“RID”)
is a “national membership organization representing the professionals who facilitate
communication between people who are deaf or hard of hearing and people who
hear.” ("About RID: Overview." Registry of Interpreters for the Deaf,
Inc. Ed., 2012. Web. 25 June 2012.
<http://www.rid.org/aboutRID/overview/index.cfm>.)
According to the RID, a
“Certified Deaf Interpreter (“CDI”) is an individual who is deaf or hard of
hearing and has been certified by the Registry of Interpreters for the Deaf as
an interpreter.” (Professional Standards Committee. “Use Of A Certified Deaf
Interpreter.” Registry of Interpreters
for the Deaf . Registry of Interpreters for the Deaf, Inc, Aug. 1997. Web. 20
June 2012. <http://www.rid.org/UserFiles/File/pdfs/120.pdf>.)
RID explains that CDI’s get
“excellent general communication skills and general interpreter training, [and
that] the CDI may also have specialized training and/or experience in use of
gesture, mime, props, drawings and other tools to enhance communication. The
CDI has an extensive knowledge and understanding of deafness, the deaf
community, and/or deaf culture which combined with excellent communication
skills, can bring added expertise into booth routine and uniquely difficult
interpreting situations.” (Id.)
They are also attuned to the finer
nuances of ASL and non-verbal communication that a hearing interpreter might not
have.
A common concern that attorneys
have is the cost of hiring a sign language interpreter. The cost shouldn’t be a
significant concern for a number of reasons.
First, you won’t need an interpreter all of the time when communicating
with your client. Second, interpreter
rates are typically not excessive. And
lastly, it is part of the cost of doing business and providing valuable
services to an often under-represented group. In any event, attorneys are
forbidden under the ADA
from charging the client for the cost of using the auxiliary aid or other
services. (See 28 C.F.R. §36.301.) This
includes potential clients as well as current clients. The good news is that
although you cannot charge your clients for the interpreter services, the ADA does provide tax
incentives to encourage compliance. (See 26 U.S.C. §44.)
When you are not having a face to
face meeting with dear or hard of hearing clients, there are inexpensive and
free methods of communication that you can use. In fact, you may use most of
them already, such as e-mail, fax, or an Internet-based chat program.
If you or you client want to
communicate by phone, there are other devices and methods that are typically
free and easy to use. For example, deaf and hard of hearing individuals use video
phones to sign to other deaf and hard of hearing individuals. They use a video relay service when talking
with hearing individuals, where the deaf person signs to the video relay
operator, who will then verbally interpret to you what your deaf client has
said. You can use this video relay
interpreter service by dialing a toll-free number and giving the interpreter
the deaf person’s video phone number.
Despite the detailed descriptions provided above, it
is not difficult to represent deaf and hard of hearing individuals. It all boils down to asking them how you can
best facilitate your communications with each another.
** This blog post originally appeared as an article the March/April 2013 Utah Bar Journal titled "Legal Requirements for Representing Clients With Disabilities." I am republishing my article on this blog as part of my desire to help attorneys across the United States find the best ways to represent their clients who are Deaf or Hard of Hearing.
