A Lawyer’s Obligation under the ADA when Representing Deaf or Hard of Hearing Clients

A Lawyer’s Obligation under the ADA when Representing Deaf or Hard of Hearing Clients

03/15/2023

Co-Author: Julie B. Griffiths

As a lawyer, you’re probably familiar with the Americans with Disabilities Act, at least in name. But are you familiar with the requirements that the ADA imposes on you and your law firm?

Most small employers are exempt from the employment requirements of the ADA. But the commercial requirements of the ADA apply to “public accommodations”—which, according to the ADA, specifically includes law offices. So all law offices, no matter how small, must comply with the ADA and provide reasonable modifications to clients with disabilities. Failure to do so may not only result in less-than-ideal representation of your clients, but may also carry the potential for a complaint with the United States Department of Justice.

So how can you ensure that you and your firm address the needs of your clients and fulfill your obligations under the ADA?

Understanding the ADA is a good start. The purpose of the ADA is to make sure that all persons have the same opportunities. To fulfill the purpose, your clients have both negative and affirmative rights under the ADA—in other words, the ADA forbids certain activities (such as discriminatory actions) and requires others (like reasonable modifications).

Relative to required actions, courts have consistently held that intent is irrelevant. You might mean well, but good faith doesn’t excuse a violation of the ADA. So understanding the ADA—in particular, the affirmative actions required under the ADA—is imperative.

The ADA doesn’t limit the conditions that qualify as disabilities. But deafness and hearing impairment have long been regarded as disabilities under the ADA. So what are reasonable modifications for a hearing-impaired client?

Auxiliary Aids

 Needless to say, effective communication with your client is an essential component of the attorney-client relationship. When you’re working with a client who’s deaf or hard of hearing, you must assess the need for and furnish appropriate auxiliary aids and services. And while you’re probably accustomed to passing on client-related costs to your client, as a general rule, you must absorb the costs of auxiliary aids and services.

Auxiliary aids and services may include qualified interpreters, real-time computer-aided transcription services, note takers, assistive listening devices, text telephones, text messages, audio recordings, or materials in electronic formats. But there isn’t a one-size-fits-all approach. Your obligations under the ADA depend on the particular communication issues and needs of your client.

Consult with your client to gain an understanding of the needs of your client and the appropriate auxiliary aids or services for your client. If you’re unable to provide the auxiliary aids or services that your client requests, you must provide alternative means to ensure effective communication. You can decline to provide a reasonable modification only when doing so would result in undue burden to your practice as a whole—viz., significant difficulty or expense.

If you need assistance with navigating the intricacies of the ADA or accommodating a hearing-impaired client, there are a number of resources available to assist you.

  • Michigan Relay. Michigan Relay is a communications system that allows you to communicate by telephone with a person who’s deaf or hard of hearing. Michigan Relay offers a variety of service options. One option is “text telephone,” which allows a hearing-impaired person to type messages and read responses. Another option is “voice carry over,” which allows a hearing-impaired person to read messages and speak responses. To reach Michigan Relay, dial 7-1-1, followed by the number you want to reach. Please note, however, that not all individuals who are deaf or hard of hearing are fluent in written English. 
  • Michigan Online Interpreter System. The State of Michigan maintains a registry that you can access to locate a qualified American Sign Language (ASL) interpreter in your area. 
  • DEAF C.A.N. DEAF C.A.N. provides a full array of services to the deaf and hard-of-hearing communities in southeastern Michigan. DEAF C.A.N. also offers community education and information for professional groups, as well as sign language interpreters. DEAF C.A.N. is a great resource if you are looking to better understand the particular needs of this client population.

 Interpreters

 Of the auxiliary aids and services mentioned earlier, ASL interpreters are perhaps the most common. If your client needs an interpreter, the ADA requires you to provide a qualified ASL interpreter. Your client may want to use a family member or friend as an interpreter. Though perfectly acceptable if that is the client’s preference, you cannot require your client to bring her own interpreter. The best practice is to confirm in writing that you offered an interpreter and your client chose to use her own interpreter.

When you use an interpreter to communicate with your client, you need to consider the competency of interpretation, the importance of privacy and confidentiality, and the potential for conflict of interest. If at any point you suspect an issue with an interpreter, halt the communication with your client until the issue is remedied.

Takeaway

The goal of the ADA is to make sure that persons who have disabilities are afforded the same opportunities as persons who do not have disabilities. If your client has a disability that impacts the ability to use your services, you bear the responsibility of providing reasonable modifications to facilitate the use of your services. Shunning your responsibility may adversely impact your representation and leave you with a fine or sanction under the ADA.

 


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