The ethics and legal requirements of representing people with disabilities
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The Ethics and Legal Requirements of Representing People with Disabilities. Rachel Arfa Staff Attorney Equip for Equality. Rule 1.1 Competence.

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The ethics and legal requirements of representing people with disabilities

The Ethics and Legal Requirements of Representing People with Disabilities

Rachel Arfa

Staff Attorney

Equip for Equality


Rule 1 1 competence
Rule 1.1 Competence with Disabilities

  • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.


Comments on rule 1 1 competence
Comments on with Disabilities Rule 1.1 Competence

  • Comments state a lawyer does not necessarily have to have special training or prior experience, and can provide adequate representation in a new field through study or through association of a lawyer with familiarity

  • Also applies to lawyer who is appointed as counsel for an unrepresented person


Comments on rule 1 1 competence1
Comments on with Disabilities Rule 1.1 Competence

  • Maintaining Competence – to maintain the requisite knowledge and skill,

    • a lawyer should keep abreast of changes in the law and its practice

    • engage in continuing study and education

    • comply with all continuing legal education requirements to which the lawyer is subject


Competence
Competence with Disabilities

  • Not required that only those who represent people with disabilities take disabled clients

  • Learn what you need to do in order to represent a client with a disability; find out what kind of reasonable accommodation the client needs. Ask your client what he/she needs.

    • If deaf, does client need ASL/oral/cued speech interpreter, real time captioning; how to best keep in touch, via video relay calls, email, text, gmail chat, and others.


Rule 2 1 advisor
Rule 2.1 Advisor with Disabilities

  • In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.


Rule 2 1 comments
Rule 2.1 Comments with Disabilities

  • A client is entitled to straightforward advice expressing the lawyer’s honest advice, including bad facts.

  • Technical advice is not helpful, especially to clients not familiar with legal terminology

  • Consider moral, economic, social and political factors


2 1 comments
2.1 Comments with Disabilities

  • Consider social factors

    • Example- representing deaf and hard of hearing clients

    • Wide range of identity among deaf and hard of hearing community

    • Some deaf people communicate by speaking and lipreading, while others use American Sign Language – which can result in distinct life experiences and attitudes


2 1 comments social factors continued
2.1 Comments Social Factors continued with Disabilities

  • Be aware of cultural differences

  • Societal factor: many deaf persons graduate from high school reading at a fourth grade reading level

  • Will need assistance in breaking down legal terminology

  • Ex. - Be sure not to simply read settlement agreement – language may be too advanced. Instead, break down what it means.


Rule 1 6 confidentiality
Rule 1.6 Confidentiality with Disabilities

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…”

  • Discuss with client before revealing information

  • Frequently, clients with disabilities have information about them shared without consent, such as to a family member

  • Hidden disabilities: clients with hidden disabilities may want to keep their disability confidential

  • Others may want to keep disability related information confidential, even if disability is obvious


Rule 1 4 communication obtaining informed consent
Rule 1.4 Communication: Obtaining Informed Consent with Disabilities

  • “A lawyer shall promptly inform the client of any decision or circumstance with respect to which the client’s informed consent…is required…”

  • Ex: Explain important provisions in legal documents

  • If a client has minimal language, use appropriate accommodations and review the agreement to ensure that you have informed consent

  • If client has visual impairment, provide document in accessible format, read document


Rule 5 3 responsibilities regarding non lawyer assistants
Rule 5.3 Responsibilities Regarding Non Lawyer Assistants with Disabilities

  • With respect to a nonlawyer employed or retained by or associated with a lawyer:

    (a)A…lawyer…shall make reasonable efforts to ensure…that the person’s conduct is compatible with the professional obligations of the lawyer;

    (b)A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer


Rule 5 3 comments
Rule 5.3 Comments with Disabilities

  • Comments define assistants as: secretaries, investigators, law student interns, paraprofessionals

  • Assistants, whether employees or independent contractors act for the lawyer in rendition of the lawyer’s professional services


How to comply with rule 5 3
How to comply with Rule 5.3 with Disabilities

  • Train your support staff on:

    • How to communicate with people with disabilities.

    • Explain obligations to be accessible under the Americans with Disabilities Act

    • How to accept and conduct video relay calls and TTY calls from deaf and hard of hearing clients. It is illegal to say “we don’t provide sign language interpreters.”

    • Provide forms in alternative format for blind and visually impaired clients, offer to assist in completing form


Obligation under ada when representing a client with a disability
Obligation under ADA when representing a client with a disability

  • Title III of the ADA provides that a public accommodation “…shall take steps to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services…”

  • Attorneys are considered a public accommodation and must provide accommodations. 42 U.S.C.§12181(7)(F)

  • Public accommodations “…shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. §36.303 (c)(1)


Doj complaint filed against attorney for not providing accommodations
DOJ Complaint filed against Attorney for not providing accommodations

  • Attorney represented deaf woman, did not use sign language interpreter when meeting with her.

  • Divorce case, where wife also experienced domestic violence in marriage

  • Attorney-client meetings: Deaf client did not understand what was discussed

  • Attorney at times used client’s sister (who was also not a qualified interpreter) to interpret

    http://www.ada.gov/tirone.htm


Doj complaint filed against attorney for not providing accommodations1
DOJ Complaint filed against Attorney for not providing accommodations

  • To communicate, attorney also used pen and paper, fax, lipreading and the relay service when communicating by phone. These methods took longer than if a qualified sign language interpreter had been provided, which resulted in higher attorneys fees to client.

  • DOJ investigation found that attorney failed to provide client with effective communication.

  • Attorney was ordered to pay a fine and waive all attorneys fees owed.


Illinois anti discrimination laws
Illinois Anti-Discrimination Laws accommodations

  • Attorneys have an obligation to comply with state and local anti-discrimination laws in representing clients with disabilities

    • Illinois Human Rights Act

    • Cook County Human Rights Ordinance

    • Chicago Human Rights Ordinance


Questions

Questions? accommodations


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