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Bar News - January 4, 2002 Attorney Obligations for Effective Communication By: Juliann M. Castelli1 ADA in the law office Editor's Note: This is the latest article solicited by the NH Bar's Delivery of Legal Services Committee on the Americans with Disabilities Act as it pertains to the legal profession. Other articles on the subject appeared in the June 8, 2001 and June 22, 2001 issues of Bar News. THE DISABILITIES RIGHTS CENTER2 frequently receives calls from attorneys inquiring about the responsibility of their office when serving a client who is deaf or hard of hearing. Three questions are frequently asked: 1) What aids or services are an attorney required to employ under the ADA? 2) What modifications are allowed to the policy? And 3) Who must bear the cost of providing such aids or services? Aids or services required Law offices qualify as public accommodations under Title III of the Americans With Disabilities Act (ADA), and as such are required to provide appropriate auxiliary aids or services to ensure effective communication with persons with disabilities.3 This obligation differs from the requirements of Title II. Both Title II and III require the use of appropriate auxiliary aids when necessary to facilitate effective communication.4 The regulations for Title II require the public entity to give primary consideration to the request of the disabled individual.5 This differs from Title III, which places the decision with the public accommodation and puts the primary consideration on whether the auxiliary aid would unduly burden the public accommodation.6 If the use of an interpreter is not an undue burden, then the law office is required to provide an interpreter.7 According to the ADA Technical Assistance Manual8, there are times when Title II entities and Title III entities are closely related despite their differences, causing certain activities to be indirectly affected by both titles.9 Where a Title II and Title III entity act jointly, each must ensure that the requirements of their respective titles are met.10 As the standards often differ, the standard providing the highest degree of access must be met.11 This article focuses on the requirements of Title III regarding effective communication between attorneys and their deaf or hard-of-hearing clients. Effective communication To ensure effective communication, an appropriate auxiliary aid must be determined. Auxiliary aids can include qualified interpreters, assistive learning devices, TDDs or videotext displays.12 As early as possible in the attorney-client relationship, attorneys must consult with the deaf or hard-of-hearing client to determine the aids or services required to ensure effective communication.13 Attorneys must carefully question the client to determine whether the attorney’s message has actually been understood, to assess the client’s need for an interpreter.14 If the message is not understood, then the need for an interpreter is established.15 The final decision on which aids or services to provide is left to the attorney’s discretion, with the caveat that the aid or service selected ensures effective communication.16 Attorneys must be aware that deaf or hard-of-hearing clients who use American Sign Language (ASL) are using a language that is different from English.17 Only a small fraction of ASL’s vocabulary is "borrowed" from other languages, and there is no written form of ASL.18 Asking a deaf or hard-of-hearing individual who is fluent only in ASL to communicate in writing will not result in effective communication.19 To ensure effective communication, the use of a licensed20 interpreter is not necessary if the person chosen meets the criteria of a qualified interpreter.21 A qualified interpreter can mean different things to the deaf and hard of hearing. Members of the deaf community22 would be more concerned with interpreters proficient in American Sign Language and its variants.23 On the other hand, hard-of-hearing individuals may prefer to use oral interpreters and lip-reading.24 Under the ADA, a qualified interpreter is an individual able to interpret effectively, accurately and impartially both in receiving and expressing communication using any necessary specialized vocabulary.25 Under New Hampshire law, a qualified interpreter must have either national or state certification, unless such a certified interpreter is unavailable.26 There are two situations in which the presence of a certified interpreter is required by New Hampshire law: First, upon request of the deaf individual27 who is a principal party in interest during any and all stages of any proceeding before a court, department, board, commission, agency or licensing authority.28 Second, when a deaf individual is arrested for any criminal violation with a penalty of imprisonment and/or a fine of over $100, no interrogation or statement may take place without a qualified interpreter, and then only through the use of the interpreter.29 Requirements for interpreters An important aspect in litigation is the ability of the interpreter to keep information confidential.30 Attorneys should be aware that interpreters are bound by a strict code of ethics to keep information regarding their interpreter assignments confidential. Certain states, including New Hampshire, have recognized interpreters as essential to furthering the attorney-client relationship, and have enacted statutes to protect such interpreters with the attorney-client privilege.31 Beyond confidentiality, attorneys must require interpreters to be accurate, impartial and proficient. Make sure that the interpreter is able to assess the audience, share each speaker’s understanding of intent of the message, and render messages from the speaker’s language to the listener’s language.32 The exchange should convey the speaker’s message as accurately as possible so that the message is complete, regardless of its content, even if distasteful to the interpreter.33 Attorneys must make sure that the interpreter is impartial and does not attempt to advise or lead a party.34 Do not ask the interpreter for advice on the issues or opinions regarding the proceeding.35 Remember that the interpreter is an impartial party to the proceeding whose purpose is to interpret and relay messages and information to and from the deaf or hard-of-hearing client. As well as being impartial, the interpreter must be proficient. Choosing interpreters unfamiliar with and unable to express legal terminology would be inappropriate. Because the subtleties of communication are often crucial to gaining a full understanding of the legal problems or repercussions, qualified interpreters often can furnish the most helpful means to ensure effective communication.36 Choosing interpreters unfamiliar with and unable to express legal terminology would be inappropriate.37 Modifications An ineffectual method of communication is per se unreasonable.38 Occasions might arise when an interpreter might not be required, perhaps for short visits, when exchanging notes, lip-reading or typing on a computer might serve as effective communication, provided that the deaf or hard-of-hearing client is able to effectively communicate.39 There is no guarantee, however, that a short visit will not turn into a long visit should the client raise complex questions. Utilizing note writing, lip-reading or typing on a computer, therefore, is not advised because there is a greater potential for ineffective communication. The difficulty in attempting to write notes or type on the computer arises when English is a second or third language to deaf or hard-of-hearing individuals fluent in ASL.40 Studies have shown that the average deaf person reads and writes at a fifth- to seventh-grade level because of education, limited exposure to English and the fact that English is not his or her native language.41 Studies have also shown that only 30 to 40 percent of spoken English is easily lip-readable.42 Some deaf or hard-of-hearing individuals may be more proficient than others, but there are external factors that multiply the potential for error, such as length of dialogue, complexity, the receiver’s knowledge of the subject, fatigue and human factors (beards and mustaches make it hard to read lips).43 Considering the high potential for error with other methods of communication, the use of qualified interpreters remains the best way to communicate with deaf or hard-of-hearing clients. Another modification frequently asked about is using a client’s family member or friend to interpret for a deaf or hard-of-hearing client. Although they are experienced in communicating with the client, family members or friends interpreting presents some problems within the legal setting.44 At times, legal complexities require an individual with experience in interpreting and expressing legal language and explanations.45 In addition, family members or friends may be too emotionally or personally affected to interpret accurately or with impartiality.46 Lastly, because of the importance of attorney-client confidentiality, it is essential to have a disinterested third party as an interpreter.47 Friends or family members might not always understand the need for confidentiality. Because of these concerns, a qualified interpreter is a more appropriate choice. Who covers the cost? Failing to ensure effective communication is discrimination, unless the aid or service provided results in a fundamental alteration to the attorney’s services or an undue burden on the resources of the attorney.48 When auxiliary aids are provided, attorneys cannot directly charge the deaf or hard-of-hearing client for the cost of providing such services, therefore, the cost of such services should be factored into attorney overhead costs.49 Fundamental alteration A fundamental alteration changes the essential nature of a good or service.50 Providing an interpreter for a deaf or hard-of-hearing client can only serve to enable the attorney to better meet the client’s needs. Communication is an essential component of the attorney-client relationship, and by improving communication that relationship is enhanced. Undue burden An undue burden is an action of "significant difficulty or expense."51 Factors to consider include the nature and cost of the auxiliary aid, the overall financial resources of the attorney, and the effect of the accommodation on those resources.52 The cost of providing a qualified interpreter must be measured against the entire firm’s income, not just against the one particular case requiring an interpreter. Generally, it is difficult to show an undue burden, especially in New Hampshire, where an attorney might be faced with a deaf or hard-of-hearing client only once or twice during his entire career.53 It might be easier to show an undue burden in areas where attorneys are faced with high deaf or hard-of-hearing case loads, such as Washington, D.C., or California.54 Also, the fact that a tax credit is given for costs incurred in providing access to individuals with disabilities55 makes it difficult to show an undue burden. This includes the provision of qualified interpreters for deaf or hard-of-hearing individuals.56 Available to professional providers (small businesses), the credit is worth 50 percent of actual costs up to a maximum of $10,250.57 Such a tax credit reinforces the importance of using qualified interpreters to ensure effective communication. Where appropriate, it will be in the best interests of the attorney to provide an interpreter as early as possible. "The cost of an interpreter in the beginning can save countless hours and money later."58 Available Resources Since 1998, the New Hampshire Legal Interpreter Referral Service (1-800-481-4340 V/TTY) has been referring legally trained interpreters.59 For emergency situations, contact the New Hampshire Interpreter Referral System (EIRS) at 1-800-552-3202.60 Contact the New Hampshire Department of Education for a copy of its "Directory of Interpreters/Transliterators & Computer Assisted Real Time Providers."61 The state also publishes a handbook entitled, "How to Hire an Interpreter for the Deaf or Hard of Hearing."62 In addition, on April 3, 2001, Northeast Deaf and Hard of Hearing Services, Inc. (NDHHS) began operation in Concord. The goal of NDHHS is to provide centralized services for New Hampshire residents who are deaf, hard of hearing, late deafened or deaf and blind. The telephone number of NDHHS is 224-1850 TTY NH Relay. Conclusion Establishing a duty to recognize and protect the rights of people with disabilities, the ADA specifies that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods and services.63 To further the purposes of the ADA, attorneys must provide appropriate auxiliary aids or services such as qualified interpreters for deaf or hard-of-hearing clients, to enable effective communication and, in the end, effective representation.
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