A Message to Other Attorneys About Serving Clients Who Are Deaf

A Message to Other Attorneys About Serving Clients Who Are Deaf – Provide a Sign Language Interpreter, Free of Charge, Or Risk a Civil Penalty of Up to $55,000 for the First Offense, and Up To $110,000 for Each Subsequent Offense, and a Federal Civil Rights Investigation By the Justice Department

    Marc Dubin, Esq. 

Attorneys in private practice are covered by title III of the Americans with Disabilities Act (ADA), and are required to provide the appropriate auxiliary aids and services necessary for effective communication, including qualified sign language interpreters. Even solo practitioners are covered by title III. Using friends and family members as sign language interpreters does not comply with this mandate, nor does lipreading or passing notes back and forth. And the enforcement agency with the big stick? The Civil Rights Division of the Justice Department, where I spent 12 years enforcing the ADA on behalf of the United States.

But can’t lawyers choose their clients? Don’t we have the right to refuse to take on certain clients? No.

Not when the client is a member of a protected class, and the reason for refusing to take the client is the client’s disability. Clients with disabilities are protected by federal law from discrimination. Just as you are prohibited from refusing to serve African Americans because of their skin color, you are prohibited from denying your services to a person because of their disability.

Take a look at http://www.ada.gov/tirone.htm. Greg Tirone is an attorney inNew York who entered into a Settlement Agreement with the Justice Department in 2004, in the first case the Justice Department had involving an attorney’s obligations to clients who are deaf. According to the Settlement Agreement:

Mr. Tirone represented Ms. Rozanski in her divorce. The divorce involved allegations of domestic violence, as well as matters of child custody, visitation, and issues relating to a restraining order.

It is alleged that Mr. Tirone failed to provide a qualified sign language interpreter during several meetings with his client.

When meeting with Ms. Rozanski in court, Mr. Tirone used the services of the court’s interpreter. The Court’s interpreter was provided by the Court at the Court’s expense.

At other times, in the absence of a qualified sign language interpreter, Mr. Tirone communicated with Ms. Rozanski by pen and paper, fax, lipreading, and by use of the National Relay Service when communicating by phone. It is alleged that use of these alternatives took longer than would have occurred had a qualified sign language interpreter been used, resulting in higher costs to Ms. Rozanski. In addition, Ms. Rozanski alleges that due to the absence of a qualified sign language interpreter, she did not understand all that was conveyed. Mr. Tirone asserts that he represented Ms. Rozanski adequately and professionally, and that he effectively communicated with her. He further asserts that he believes that Ms. Rozanski understood him at all times.

Mr. Tirone acknowledges that as an attorney in private practice, he is covered by Title III of the ADA as a place of public accommodation and is obligated to ensure effective communication with Ms. Rozanski. Mr. Tirone does not deny that Ms. Rozanski is an individual with a disability and as such, is protected from discrimination under the ADA. See 42 U.S.C. §§ 12182(b)(1)(b)(2)(a). He asserts that he effectively communicated with Ms. Rozanski at all times

The Justice Department made specific findings of fact in the Settlement Agreement:

Use of a family member as a sign language interpreter in a matter involving domestic violence was inappropriate. Because of her relationship as Ms. Rozanski’s sister, the nature of the communications, and because of her emotional and personal involvement with her sister, she was not qualified to serve as an interpreter in this matter. In addition Ms. Rozanki’s sister was not a qualified sign language interpreter, as she has a hearing disability as well, and uses a different sign language than her sister, (signed English), and lipreads. Born with a hearing loss, she has moderate to severe hearing loss in her left ear and severe to profound loss in her right ear. Her doctors have indicated that “with hearing loss of this degree and nature, (she) can be expected to have communication difficulties in all listening situations, especially when competing background noise is present and when speakers are at a distance or not facing her.” She also has had no specialized training in interpreting legal terms.

The Department of Justice has investigated the allegation that Mr. Tirone failed to provide Ms. Rozanski with effective communication and finds the allegation meritorious. Mr. Tirone acknowledges a single violation of the ADA and agrees to the terms set forth below as a resolution of the investigation. In exchange, the United States agrees to terminate its investigation of this matter, without resorting to litigation.

The Settlement Agreement is worth reading, in its entirety. It sets forth the law quite clearly.

Section 36.303 of the ADA regulation provides that a public accommodation:

(S)hall take those steps that may be necessary 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, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
§ 36.303(a).

Attorneys are considered a public accommodation and must provide sign language interpreters when necessary to provide effective communication, which is the case when the client uses sign language as his or her primary means of communication. The commentary to the title III regulation points out:

It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication (emphasis added).
Commentary to § 36.303

The public accommodation must:

(F)urnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.
§ 36.303(4)(c).

Auxiliary aids and services include but are not limited to “qualified interpreters”. § 36.303(b)(1).

A “qualified interpreter” is one who:

(I)s able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary. (Emphasis added). §36.104

There are several different sign language systems used by persons who use sign language. (The most common systems of sign language are American Sign Language and signed English.) Individuals who use a particular system may not communicate effectively through an interpreter who uses another system. When an interpreter is required, the public accommodation should provide a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.

Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively.

Family members, friends, and close associates are not qualified interpreters in most cases, and generally should not be used to interpret. The commentary to the Title III regulation makes clear:

...(P)ublic accommodations have at times asked persons who are deaf to provide family members or friends to interpret. In certain circumstances, notwithstanding that the family member or friend is able to interpret or is a certified interpreter, the family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret “effectively, accurately, and impartially.” (Emphasis added). Commentary to §36.303.

Please feel free to contact me directly, at mdubin@pobox.com if you have any questions. I wrote and signed the Settlement Agreement on behalf of theUnited States.

Sincerely.

Marc Dubin, Esq.

Director of Advocacy, Center for Independent Living of South Florida

mdubin@pobox.com

305-896-3000 mobile

Former Senior Trial Attorney, US Department of Justice, Disability Rights Section, Civil Rights Division, 1993-2005

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