Overview of Today’s Discussion

1. Interviewing People with Disabilities Permission to reprint this publication is granted by the author, Disability Rights Washington, provided that the publication is distributed in its entirety free of charge and with attribution. David Carlson, Associate Director of Legal Advocacy and Stacie Siebrecht, Associate Director of Legal Advocacy Disability Rights Washington

2. Overview of Today’s Discussion • Introduction • Disability Perspective • What is a disability? Why does it matter? • Tips for Interviewing • Respect • People First Language • Setting up the Structure • Eliciting the Story • Ethical Scenarios During Representation • Conclusion

3. Disability Rights Washington • Private Non-Profit Organization • Free Services to People with Disabilities • Statewide • No Financial Eligibility • Issue Must Be Related to the Disability • Protection and Advocacy System • Located In Every State and Territory • Learn more from our back up agency at www.ndrn.org

4. Disability Perspective – First Question: What is a disability? • In Washington, the Law Against Discrimination (RCW 49.60.040(7)) defines it as: • a sensory, mental, or physical impairment that: • (i) Is medically cognizable or diagnosable; • (ii) Exists as a record or history; or • (iii) Is perceived to exist whether or not it exists in fact. • exists whether • temporary or permanent, • common or uncommon, • mitigated or unmitigated, or • whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter….

5. Why does it matter? • Lots of definitions out there • For example: DRW federal grants; IDEA; Medicaid; Social Security; ADA • As an attorney why should you care? • Is “disability” an element of your claim or otherwise legally significant? • Does the individual need accommodations from you? • Beware: • Disability can be stigmatizing • Disability further compartmentalizes

6. Goals of the Interview- initial interview • What are your goals? Is this the initial client interview? • Elicit information • Establish Trust /Respect • Build Client’s Confidence • Ascertain Client’s Goals • Establish Next Steps

7. Tips for Interviewing: Respect • The greatest barrier for individuals with disabilities: • Attitudes • Stereotypes • Parentalism/Paternalism/Maternalism • Inflexibility • Using disability to classify further stigmatizes • The language you use matters • People First Language • Language that Empowers • Paint the reality and not the stereotype

8. People First Language and Other Disability Culture • People are not defined and categorized by their disability • People are described as people • Any references to disability are made only when relevant, and otherwise seen as useless descriptors that merely feed prejudice and irrational assumptions

9. People First Language • Examples of language to avoid: • Mentally retarded → She is a cognitive disability or intellectual disability. • handicapped or disabled → People with disabilities • Autistic → She has autism or a diagnosis of .. • She’s in special ed → She receives special education services • Confined to a wheelchair or wheelchair bound → He uses a wheelchair • See People First Language, by Kathy Snow Article, disabilityisnatural.com

10. RPCs Require Respect • RPC 1.14 – Diminished Capacity “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of … mental impairment … the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with the client.” • Cmt 2: “The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect …”

11. Tips for Interviewing: Setting the Structure • Plan for the Interview • Scheduling Matters: • Plan for extra time. Individuals with disabilities may need extra time processing. • Ask the individual if they prefer a time of day or length of the meeting.

12. Tips for Interviewing: Eliciting the Story • Recognize individuality • different styles and preferences for communication • Tips for Specific Disabilities: • Individuals with disabilities, who do not communicate verbally, may have other means of communicating such as blinks or modified version of sign language. • Speak directly to the person rather than to the companion or interpreter. • Offer to shake hands even if the person has an artificial limb. • When speaking to someone who has a visual disability, identify yourself and others, who may be with you.

13. Tips for Interviewing: Eliciting the Story – your expectations and skills • Do not expect to get the whole story out the first time. • Be Patient. • Give them time to speak. • Do not complete sentences for them. • Redirection to keep focus.

14. Tips for Interviewing: Eliciting the Story (cont.)- how you ask the questions? • Gauge pace, complexity and vocabulary to the person’s needs. • Use clear, simple questions. • Use short questions. • Phrase the question neutrally to elicit accurate information.

15. Tips for Interviewing: Eliciting the Story (cont.)- are you sure you understand? • Beware: • may feel stigmatized and pretend to understand to feel competent • may have a desire to please leading to providing “expected or desired” answers or answering “yes” • So you can: • Ask questions in different ways. • Never pretend that you understand. • Repeat back. • Enumerate next steps. • Write important information such as your phone #.

16. Scenario 1: Communication Skills • Facts: Attorney asks to interview a patient at a nursing facility, but the staff inform her that the woman cannot talk. The Attorney watches the woman for a while noting her awareness of her surroundings. The Attorney asks the individual if she can communicate listing options such as writing or signing. Finally, the Attorney notices that the individual is blinking. After further follow up, the Attorney realizes that the individual blinks to communicate.

17. Scenario 1: Communication Skills • Apply techniques: • Alternative methods of communication • Patience • Don’t assume staff or family know everything! • RPC 1.14 – Diminished Capacity “… the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with the client.” • Cmt 2: “The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect …” • Cmt 3 “lawyer … must .. look to the client, and not family members, to make decisions on the client’s behalf.”

18. Scenario 2: Accommodations • Facts: An adult with a disability does not want to meet with you without her sister present. Her sister wants to be there to make sure she explains everything accurately. Can you interview the adult with the sister present while preserving attorney client privilege? • Apply techniques and RPCs: • Explain who the client is/who you represent • Best to interview separately in case conflict • Don’t assume family is right • Apply RPCs if adult still wants sister present

19. Scenario 2: Accommodations (cont.) • Attorney Client Privilege – Evidentiary Rules • RPC 1.14 – Diminished Capacity, comment 3 • “The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of the such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interest foremost and, … must look to the client, and not family members, to make decisions on the client’s behalf.”

20. Scenario 3: Confidentiality – building trust, but when do you breach it? • Facts: A client contacts you and informs you that he is going to blow up a federal building. In reviewing the file, the client has made this same report over ten times and always when he was frustrated and needed attention. He lacks the cognitive, financial and other connections to get and make a bomb. You ask him questions about his frustrations and his intentions to bomb the building. He deescalates once you help him with his issue. • Compare: Aperson who threatens to attack his neighbor for being loud. He physically is capable of attacking the neighbor and has assaulted others in the past. He has a plan to do so. • Apple Technique: • Ask detailed questions • His goals? Willing to disclose? • RPCs

21. Scenario 3: Confidentiality (cont.)– RPCs, breaching confidentiality RPCs • Build trust and comfort – RPC 1.6(a)– “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” • MUST DISCLOSE IF … “to the extent the lawyer reasonably believes necessary: (1) shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm” RPC 1.6(b)

22. Scenario 4: The Effects of Medication • Facts: An individual asks you to represent him in a disability benefits appeal because he cannot work due to his rheumatoid arthritis, which prevents him from bending his joints without great pain. As a result, the doctor told him to rest most of the day and prescribed Prednisone. When he comes into your office, he appears to walk, move, and bend effortlessly. --- excerpted from “Representing the Medicated Client” by Jan Costello, MDLR/ January -February 1983.

23. Scenario 4: The Effects of Medication • Apply techniques: • Don’t prejudge • Obtain documentation • Research the effects of the medication • RPC 1.1 Competence – (5) … inquiry into and analysis of the facts and legal elements of the problem…” • Don’t jump to RPC 1.2(d) – “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but may discuss the legal consequences …” and RPC 1.6(b)(2) – “prevent the client from committing a crime”

24. Scenario 5: Capacity • Fact: Individual who uses a wheelchair lives in a nursing facility and wants to leave. Individual has no home to live in, but does not want to live in the nursing facility anymore. Individual slurs language and repeats himself a lot. Can you help the individual leave the nursing facility to live on the streets? • Apply techniques and RPC: • Dig deeper: Ask questions about nursing facility conditions • Plans on discharge: Does individual have any to meet basic needs? • Informed Consent: Understand options – risks and benefits

25. Scenario 5: Capacity (cont.) – application of the RPCs • Apply techniques and RPC: • RPC 1.14, Cmt 6 – To determine capacity consider: • Client’s ability to articulate reasoning leading to a decision • Variability of state of mind and ability to understand consequences • The substantive fairness of the decision • Consistency of a decision with the known long term commitments and values of the client • RPC 1.2(a) - client establishes goals of representation • “a lawyer shall abide by a client's decisions concerning the objectives of representation and … shall consult with the client as to the means by which they are to be pursued.” • Expressed interest – don’t forget this is what guides the Attorney!

26. Scenario 6: Don’t Disregard Individual Who Has Delusions • Facts: Individual has a history of delusions claiming that she is an angel from heaven. She reports that she has spiders crawling all over her bed and they only come out at night. She is scared because the night staff bring them into her room. • Apply techniques: • Treat with respect – RPC 1.14(a) and Cmt 1 – “normalizing the relationship • Look for aspects of reality • Ask more questions – RPC 1.1 Competence (5) –thoroughness • Look at records

27. Conclusion • Questions • The skills for representing people with disabilities are just good lawyering skills.