Accommodating actual or potential clients with hearing impairments is a misunderstood requirement of the Americans with Disabilities Act.
Duties of Public Defenders and Other Government Lawyers
Public attorneys, such as public defenders (lawyers assigned to represent people charged with a crime) or other state or local government lawyers, may be unfamiliar with their obligations under the ADA. Public attorneys must ensure that communication with deaf or hard of hearing clients and members of the public are as effective as communications with others. A public attorney must provide appropriate accommodations when necessary to provide an equal opportunity to participate in and enjoy the benefits of the lawyer’s services. A public attorney must give primary consideration to the accommodation requested by the individual who is deaf or hard of hearing.
Duties of Private Lawyers
Private attorneys may be unfamiliar with their obligations under the ADA. Some private attorneys may be unwilling to provide and pay for the necessary communication access services. As a result, many deaf and hard of hearing people are unable to retain private attorneys for important legal matters, such as criminal proceedings, family law issues, and employment law matters. The ADA recognizes that private lawyers do not have to provide a specific type of auxiliary aid or service if they can demonstrate that doing so would be an undue burden (a significant difficulty or expense). To demonstrate an undue burden, lawyers must show that the cost to provide accommodations would significantly impact their practice and financial resources, which may be difficult for most law offices. When an undue burden can be shown, the lawyer must provide alternative communication access services that would, to the maximum extent possible, ensure effective communication.
The Americans with Disabilities Act (ADA) requires attorneys to provide equal access to their services by providing accommodations necessary to ensure effective communication with individuals who are deaf or hard of hearing. These accommodations include qualified interpreters, CART, and assistive listening devices.
Help with the Cost of Accommodation
The NAD advocates for improved access to legal services through the establishment of a communications access fund (CAF) in each state. The CAF would cover the cost of communication access services to ensure effective communication with private attorneys. The revenue source for each state’s CAF could be generated by assessing a small annual fee to be paid by each practicing attorney licensed in that state. Several states and local jurisdictions have established CAFs for legal services.
Liability Under the ADA
For a discussion of liability exposure for failing to comply with the ADA, see Providing for the Deaf, Hard of Hearing under the ADA. This post also contains useful practical tips for meeting your communication obligation.
Help for Oregon Lawyers
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