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Business Law: Serving the Deaf Client

by Victoria Chase and Kate Reznick

Summer 2004, Vol. 67, No. 2

In January, the Department of Justice (DOJ) settled a claim of discrimination under the Americans with Disabilities Act (ADA) with an attorney who did not provide a qualified sign-language interpreter for a deaf client. The settlement has generated concern among attorneys, but we should be neither surprised nor panicked. While there are some additional costs associated with hiring sign-language interpreters, complying with the ADA is simple and usually not onerous.

The Settlement
The DOJ action against a New York family law practitioner stemmed from an ADA claim filed by a woman with a hearing disability who communicates by sign language and lip reading. The attorney refused to hire sign-language interpreters despite the client’s requests and insisted on communicating via lip-reading, note writing and conversation interpreted by one of the client’s family members. The family member giving assistance was hearing impaired as well, but used a different form of sign language. The complainant alleged that she did not understand everything conveyed to her and that the communications took longer than if an interpreter had been used, resulting in higher fees.

In settlement of these claims, which may have carried a civil penalty if proven, the attorney agreed to post a notice in a local paper concerning his willingness to provide sign-language interpreters upon request, to return $2,200 in fees, and to forego any fees owed by this client. Settlement Agreement Between United States of America and Gregg Tirone, Esq. DOJ Complaint No. 202-53-20.

The parties settled without court involvement, and the settlement does not constitute controlling legal precedent. It does, however, indicate the DOJ’s interpretation of the ADA and its willingness to take action against attorneys who refuse to provide sign-language interpreters to clients requesting them. The settlement also serves to draw attention to the arguably clear requirements of the Americans with Disabilities Act.

Title III of the ADA prevents discrimination against people with disabilities by “public accommodations,” which are private entities that do business with the public. See 42 U.S.C. §12182(a). Attorneys are specifically defined as public accommodations under Title III. See 42 U.S.C. §12181(7)(f). Although the recent settlement is the first publicly released proceeding involving a lawyer, it follows several Title III cases against physicians and other professionals. See, e.g., Majocha v. Turner, 166 F.Supp.2d 316 (W.D.Pa. 2001); Mayberry v. van Valtier, 843 F.Supp. 1160 (E.D. Mich. 1994). Public accommodations, including lawyers, must provide “auxiliary aids and services” to assure that clients with disabilities can communicate as effectively as anyone else. See 28 C.F.R. §36.303(a). The commentary to this section suggests that communication without interpreters is likely to be ineffective in legal matters where complex information is being exchanged.

Attorney Responsibilities
What does this mean in practical terms? The practical consequences of ADA compliance are best considered in relationship to three issues:

  1. Who can act as a sign-language interpreter?
  2. How should the costs be handled?
  3. When is an interpreter necessary?
These practical considerations summarize our experience at Legal Clinic for the Disabled, Inc., a not-for-profit public interest law firm that provides free legal services to people with disabilities and represents many clients who require interpreters.

Who should an attorney use to interpret? The ADA requires the use of “qualified” interpreters who have been trained in the terminology being communicated. See 28 C.F.R. §36.104. Interpreters who are trained in legal terminology should be used in most instances. Also, the interpreter must be impartial. See id. According to the commentary to this section, a client’s friend or family member may not be considered qualified in some cases even with the proper training. For example, the attorney in the DOJ settlement used the client’s sister to interpret in an emotionally charged case involving custody, divorce and abuse. Even if the sister had been certified, she probably would not have been qualified due to lack of impartiality.

The Costs Involved
How should an attorney handle the costs of interpreting services? An attorney cannot pass on the costs of an interpreter to a client, either as a cost of litigation or by charging a higher fee. See 28 C.F.R. §36.301(c). As a practical matter, the profit margin in working with a client with a hearing disability may be lower. The statute does provide a defense to furnishing the requested accommodation if it will be unduly burdensome. See 28 C.F.R. §36.303(f). This defense, however, is extremely difficult to prove. Undue burden does not mean simply that the representation will not be very profitable because of interpreter costs, or even that a lawyer may lose money; the cost must have a significant negative impact. See 28 C.F.R. §36.104. Undue burden claims are measured against the financial situation of the organization as a whole, not on a case-by-case basis. See id. This suggests that profitable firms cannot successfully use the undue burden defense.

The cost issue probably is not worthy of the alarm it has generated. If you are a small business, you may also be able to take advantage of a federal tax credit for interpreters and other communication aids. See 26 U.S.C. §44. Also, of course, the client must have the ability to pay the standard fee for the work; the ADA does not require that an attorney provide pro bono services or reduced fees just because a client has a disability. In certain scenarios, other parties will provide the sign-language interpreters, including courts or other government bodies covered by ADA Title II. You will, however, be responsible for arranging interpreting services in court, although you are not required to pay.

Most importantly, cost issues should not produce serious alarm because attorneys will never spend all billable hours on a given matter communicating with the client, nor will an attorney use an interpreter for every communication. An attorney’s hourly rate will exceed the interpreter’s by far in most instances, so most attorneys’ work will remain profitable.

If an attorney does not use an interpreter for all communications, when is it necessary? The ADA actually states that public accommodations must provide auxiliary aids and services “where necessary to ensure effective communication…” 28 C.F.R. §36.303(c). Accordingly, attorneys must exercise their best judgment about when the interpreter is necessary and when other means may suffice.

For instance, if a potential client calls using the Pennsylvania Relay Service and requests legal assistance, an attorney probably can use the relay service to ask the caller for some basic information to determine whether the potential matter is within the scope of his or her practice. If it is, the attorney would then interview the client with a sign-language interpreter to evaluate the case. The potential client may be denied services without running afoul of the ADA if the claim has no merit. The denial of services cannot be predicated on a pretext, however, and it is always good practice to document the reason for denying service.

After commencing the representation, many simple communications can occur using the relay service, a TTY machine if available, facsimile or email. If the communication concerns a complex matter, then an interpreter may be preferable. Often, the client will request a meeting with an interpreter when the client is having trouble understanding.

The extent to which you communicate with your client using these other methods will depend in part on what is mutually comfortable and upon your clients’ English proficiency. American Sign Language (ASL) is actually a different language system than English, and clients’ familiarity with ASL or English will vary greatly depending upon their education and history. In fact, many people with hearing disabilities do not know ASL, so ask about the preferred form of communication before hiring an interpreter.