Years ago, while pondering the decision to attend law school, I started taking American Sign Language (“ASL”) classes. As I learned more of the language and more about the Deaf culture, it occurred to me that if I ever became a lawyer, that I would enjoy being able to communicate directly with clients who used ASL. Years later, I have started up my own law practice in estate planning, and because I am not yet fluent in ASL, I have been working to set up my office to provide accommodations for clients who are Deaf or Hard of Hearing.
Toward this end, I did some research on working with Deaf and Hard of Hearing clients and some of what I learned surprised me. I then thought, since I have been involved in the Deaf community and I did not know some of these things, perhaps other lawyers also might not have this information and maybe I should share it with them.
A Lawyer’s Obligation
Most of you know that courts are required to provide interpreters for non-English speaking persons, including people who are Deaf or Hard of Hearing. What some of you may not know is that lawyers in private practice have a similar obligation to their clients who have a hearing loss.
Title III of the Americans with Disabilities Act (ADA) requires that “public accommodations shall furnish appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication for individuals with disabilities.”1 The ADA’s definition of a “public accommodation” specifically includes a lawyer’s office; therefore, this applies to lawyers in private practice.2
Accommodations
The statutory definition of a qualified interpreter is “an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.3 In a legal setting, an interpreter unfamiliar with how to interpret legal terms and issues likely will not be considered “qualified.”4 Additionally, interpreters who are qualified, but have not gone through any certification process, may not be well trained in handling ethical conflicts that impinge on their ability to be “accurate and impartial.”
Often, a client’s parent, sibling or friend will not meet these standards because they are too personally involved with the client to be impartial and/or they lack special training in interpreting legal terms and issues. The Registry for Interpreters for the Deaf5 has an extensive certification program from which many states defer to determine whether an interpreter is qualified.
In addition to qualified interpreters, auxiliary aids and services also include computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices … [and] telecommunication devices for Deaf persons (TDDs).6 Such options may be especially useful if the client does not know ASL or communication does not occur in person. Also, keep in mind that while some clients may have some ability to read lips, lip reading is not considered the most effective way of communicating.7
Determining the Best Form of Accommodation for Your Client
Many individuals with disabilities do not view themselves as “disabled,” but rather see the situation as one needing the identification of effective, achievable accommodations. In order to establish effective communication with a client with hearing loss, it is best to consult with the client directly and you can start by simply asking the client what form of communication he or she prefers.
If a client does not disclose a disability but you suspect that the client may have one that requires some sort of accommodation, how you broach this issue can make a difference. If you are in such a situation, Robert Lichtenberg of the DSHS Office of Deaf and Hard of Hearing suggests that you discuss the lawyer’s ethical responsibility to provide effective representation and explain that the intent of asking whether the client needs assistance in ensuring effective communication (ergo, effective representation) is based on the need to observe ethical responsibilities. This way, the lawyer affords the client the opportunity to “request” an accommodation knowing that the lawyer and client share in the communication issue and solution.
Costs and Attorney-Client Privilege
Two other issues are important for lawyers to know about. One is that the lawyer is responsible for the costs of providing the necessary accommodations required under the ADA, except in rare circumstances.8 The second issue relates to attorney-client privilege. Generally, the presence of a third party during communications between a lawyer and client waives the attorney-client privilege. However, where the third party is present to provide services necessary for communication, the third party’s presence does not waive this privilege.9 When an “interpreter is working between two parties to a communication in which the privilege would exist without the interpreter, the presence of the interpreter does not affect the privileged nature of the communication.”10
As you know, for hearing people, meeting someone who is Deaf or Hard of Hearing can be a bit unnerving because many hearing people have not had much exposure to the Deaf community and are uncertain how to interact with those who cannot hear. I know this because this is how I felt when I first spent time around my Deaf friends. My hope in writing this article is that this information will help make things easier if a Deaf or Hard of Hearing person contacts you to provide legal services.
Resources
- To learn more about working with clients who are Deaf or Hard of Hearing, check out the Americans with Disabilities Act or the National Association for the Deaf (www.nad.org).
- To learn more about using interpreters for the Deaf, in or out of court, go to the Registry of Interpreters for the Deaf (www.rid.org) or read, Sign Language Interpreters in Court: Understanding Best Practices by Carla M. Mathers (2006).
- To find an interpreter in King County, contact The Office of Deaf and Hard of Hearing at DSHS (www1.dshs.wa.gov/hrsa/odhh/), or SignOn, A Sign Language Interpreting Resource in Seattle, WA (www.signonasl.com)
- To learn American Sign Language, contact the local universities and community colleges as most offer courses in American Sign Language. For more intense study, check out the Total Immersion ASL courses at the Washington School for the Deaf (www.wsd.wa.gov).
Siri Quigley is an attorney providing legal services in the area of Estate Planning. Siri plans to continue her studies of ASL by attending a week-long Total Immersion ASL course at the Washington School for the Deaf this June. Siri wishes to thank Robert Lichtenberg, Assistant Director of the DSHS Office of Deaf and Hard of Hearing, for his help with this article. www.siriquigleylaw.com
1 Americans with Disabilities Act, Settlement Agreement Under the Americans with Disabilities Act of 1990 between the United States of America and the Law Office of Cohen and Jaffe, LLC (2007), http://www.ada.gov/cohenjaffe.htm. With respect to an individual, the ADA defines a disability as “a physical … impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A) (2007). Arguably, people who are Deaf and Hard of Hearing have a disability under the ADA because they have a substantial limitation to the major life activity of hearing.
2 28 C.F.R. § 36.104 (2002).
3 Id.
4 Supra note 2.
5 For more information about the Registry for Deaf Interpreters, go to http://www.rid.org.
6 28 C.F.R. § 36.303(b)(1) (2002).
7 National Association of the Deaf, Attorneys, Deaf Clients, and the Americans with Disabilities Act, http://www.nad.org/legalservices (last visited May 7, 2007).
8 42 U.S.C. § 12182 (b)(2)(A)(iii); 28 C.F.R. § 36.104.
9 Carla M. Mathers, Sign Language Interpreters in Court: Understanding Best Practices 40 (2006).
10 Id. at 40 (citing State v. Aquino-Cervantes, 945 P.2d 767 (Wash. Ct. App. Div. 2 1997)).
