eCourt, Lawyers with Disabilities, and the ADA

In October of 2014, the PLF added At the Corner of Law Practice and Disability to its collection of CLEs available on the PLF website.

This program discusses EEOC and ADA requirements; work at home/telework as a reasonable accommodation; practical ways a small firm can accommodate an attorney with disabilities; ethical concerns and best practices for lawyers who have an unplanned medical emergency; resources for attorneys with disabilities; and social security disability.  Speakers included Amber Bevacqua-Lynott, Cheryl Caon, Melissa Kenney, Kendra Matthews, Lisa Porter, Helle Rode, and Camilla Thurmond with special content provided by Alice Plymell.

Kudos to Oregon Women Lawyers for sponsoring this CLE.  It raised awareness, offered concrete resources, and generated some interesting questions.  Here is one that occurred to me:

What happens at the Corner of Disability and Mandatory eCourt?

Consider this scenario:  Lawyer A is visually impaired.  Using an interactive website, such as Oregon’s Odyssey eFile & Serve eCourt System, is difficult if not impossible.  What can (or should) Lawyer A do?

First Order Issues

It does not appear that the eFile & Serve website can be used by impaired users. Searching “Self-Service Support” on the Odyssey eFile & Serve website produces this less-than-clear result:

Article #4263 Does your website work with accessibility programs for impaired users? – KB4263.  In general, an information technology system is accessible to people with disabilities if it can be used in a variety of ways that do not depend on a single sense or ability. For example, a system that provides output only in audio format would not be accessible to people with hearing impairments, and a system that requires mouse actions to navigate would not be accessible to people who cannot use a mouse because of a dexterity or visual impairment. Section 508 focuses on the overall accessibility of electronic and information systems, not on providing accommodations at individual worksites. Individuals with disabilities may still need specific accessibility-related software or peripheral devices to be able to use an accessible system.

Can other technology, like a screen reader, come to the rescue?  Not really. Screen readers are software programs that allow blind or visually impaired users to read the text that is displayed on the computer screen with a speech synthesizer or braille display. They can be free, but may also cost upwards of $1200.
Screen readers are a help to users who have difficulty seeing content on a Web page, but they are not usually a good solution for interactive sites with fill-in fields and pick-lists.

[All Rights Reserved 2015 Beverly Michaelis]


Are Private Lawyers Required to Bear the Cost of Communication Access?

Accommodating actual or potential clients with hearing impairments is a misunderstood requirement of the Americans with Disabilities Act.

The National Association for the Deaf has this information to share:

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.

Required Accommodations

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

Oregon’s Deaf and Hard of Hearing Services provides resources and can answer questions about interpreter services in Oregon or other deaf and hard of hearing related information.

All Rights Reserved – Beverly Michaelis – 2013