by Dale H. Boam
Twenty-four years after my first exposure to the Deaf community I am still deeply involved with Deafness and Deaf Culture as an attorney, certified interpreter, teacher of interpreters, and a friend to the Deaf community.1 In my practice, I often represent persons who are Deaf and who, by reason of their Deafness, face discrimination at the workplace and barriers when they attempt to access goods and services that the hearing population takes for granted. Sadly, I have seen such barriers in hospitals, doctors’ offices, educational institutions, courts, and attorneys’ offices. Most of these situations are misunderstandings and easily resolved once people understand their legal obligations and make a slight adjustment in their analysis of the situation. In my practice, I have found that law is a profession inhabited by persons seeking to do right. Doing right is often simply a matter of knowing how to analyze the situational requirements and acting accordingly.
For attorneys, developing a working relationship with a client who is Deaf requires a simple adjustment in perspective: An interpreter is not a luxury. Due to the length and complexity of even the most routine communication between attorney and client, in order to establish effective communication an interpreter is usually a necessity. See 28 C.F.R. § 36.303(c). A good rule to follow is to ask yourself if the information you need to present is the kind you would communicate to a hearing client over e-mail, by letter, or in any manner other than face to face; if not, get an interpreter!
This perspective is supported by the text of Title III of the Americans with Disabilities Act (ADA). Title III of the ADA states that, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. 12182; C.F.R. § 36.201. The term public accommodation includes the offices of attorneys. See 28 C.F.R. § 36.104.
Furthermore, Title III of the ADA requires attorneys to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless they can demonstrate that making the modifications would fundamentally alter the nature of the above as allowed by section 36.302. See 28 C.F.R.§ 36.302.
Attorneys must take those steps that are necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently from other individuals because of the absence of auxiliary aids and services. If the attorney 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, this obligation may be avoided. See 42 U.S.C. § 12182(b)(2)(A). Auxiliary aids and services are designed to provide effective communication, which is mandated by the ADA.
Under the ADA, auxiliary aids and services may include qualified interpreters, note-takers, computer aided-transcription services (CART), written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for Deaf persons (TDD’s), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments. See 28 C.F.R. § 36.303 (b)(1). Many attorneys with whom I speak make the mistake of reading “written materials” as excusing them from the expense of providing a qualified sign language interpreter, in favor of a pen and paper or a computer. A quick change of perspective is needed here as well. This list is not provided so the attorney can choose the aid or service the attorney likes. The list is provided because the type of auxiliary aid or service necessary to ensure effective communication varies according to the method of communication used by the client and the context and content of the communication; the attorney must choose the aid or service that is effective for the immediate situation.
While some persons who are Deaf may prefer to communicate in writing (e-mail tends to be very effective), written communication will not always assure effective communication. Even after communicating in writing for most of the case, a client may request an interpreter in order to clarify or ask questions of a nature too complex or lengthy to be effectively handled in writing. When determining if an interpreter is needed, an attorney should always consider the nature, length, and complexity of the communication involved and the context in which the communication is taking place. In fact, the preamble to the regulation itself lists “communications involving legal matters” as an example of a type of communication that can be sufficiently lengthy or complex to require an interpreter for effective communication. See 28 C.F.R. pt. 36, App. B at 703 (2005). Always remember an interpreter is not a luxury – in legal discussions it is usually a necessity.
Many persons who are Deaf are using Video Relay Services (VRS) for telephone conversations. An attorney can call the VRS provider and an interpreter at a call center will call the client who is Deaf and then interpret between the parties. This service is tax supported and provided at no cost to the users. For quick questions or clarifications this is ideal, but do not mistake it as a replacement for an actual interpreter when discussing legal matters. The VRS interpreters may or may not have any experience in interpreting legal matters. Calls are assigned at random to call centers all over the country, and although all interpreters working for VRS providers should have a minimal acceptable skill level, an attorney has no control over the skill or experience of the interpreter assigned to the call; thus, the attorney has no means of assuring the effectiveness of the communication.2
Frequently Asked Questions
The following is a list of questions I have received from attorneys since 2004 concerning representation of Deaf clients:
1. As I understand it, the ADA does not apply to my office because I only have 12 employees. Right?
Many attorneys with whom I speak believe that the ADA does not apply to them because their firm or office does not employ 15 persons or more. This is a common error and one born of the way the ADA is written. The law is written in five Titles; the first covering only employment of persons with disabilities. Title I waives compliance with the employment portions of the law for any company with 14 or fewer employees. This exception is found only under Title I and has no bearing on access to an attorney’s office by clients who are Deaf and who are seeking legal counsel, but not employment, with that office.
2. Who pays for an interpreter?
The short answer is that the entity providing the service pays for the accommodation. The cost of auxiliary aids and services or other ADA mandated measures cannot be charged to the client. See 28 C.F.R. §36.301. Attorneys must ensure their services are accessible to the public and that effective communication is provided to clients or potential clients. An attorney may not impose a surcharge on a person or a group of persons with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide that individual or group with the nondiscriminatory treatment required by the ADA. See 28 C.F.R. § 36.301(c). This includes potential clients as well as current clients. Think of it this way: You would not require a client in wheelchair to pay for a ramp to enter your office. A ramp is an ADA mandated physical modification; an interpreter is an effective communication requirement mandated by the ADA. The cost of an interpreter is a cost of doing business, like paying for a research service or keeping your lights on. However, the ADA does include tax incentives to encourage compliance.3
3. Can’t the client who is Deaf just bring his mother (father, brother, wife, girlfriend, etc.) to interpret for him?
Using family members, friends, or other lay persons as interpreters is problematic on many levels. When an interpreter is deemed necessary, the ADA requires that the interpreter is “qualified.” The ADA defines a qualified interpreter as “an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 36.104. The ability to sign does not equal the ability to interpret.
Family members and companions may not satisfy the law’s requirement that an interpreter is “qualified;” family members and friends may not remain impartial, and may have had no legal training to properly interpret specialized legal vocabulary effectively. Furthermore, the state of Utah requires that persons providing interpreting services hold a state or national certification. See Utah Code § 53A-26a-301 (2006). In essence, Utah law interprets the ADA’s standard of qualified to mean certified. Persons providing interpreting services without such certification are subject to fines and possible jail time. See id. § 53A-26a-501. More important for the attorney, facilitating an uncertified person in the provision of interpreting services can subject the attorney to the same legal sanctions. See id.
On an ethical level there is no guarantee that a family member or friend will respect the requirements of privilege, and the use of untrained and possibly interested parties may, in fact, waive the client’s right to confidentiality. Certified interpreters are bound by an ethical duty of confidentiality.4 The Department of Justice warns that family members and friends may not be able to provide impartial or confidential interpreting, even if they are skilled sign users:
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.”
56 Fed. Reg. 33553 (July 26, 1991).
By reason of a family member or friend’s limited knowledge of legal terminology, dangerous misinterpretations or omissions of advice may occur. The attorney, client, or both could seek redress from the professional, i.e., certified interpreter, but not a lay person should misinterpretations or omissions occur. A quick cost benefit analysis shows that saving a few dollars up front is not worth the potential problems later on.
4. If I have to pay for an interpreter I will lose money on this case, and isn’t that an undue burden?
Undue burden is not measured by the amount of income the attorney receives from that one Deaf client, but by the financial impact on the firm as a whole. It is generally accepted that the comparison is cost versus revenues over the course of a year. Undue burden is defined as significant difficulty or expense when considered against the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business.
The undue burden standard is applied on a case-by-case basis. Imagine it this way: The approximate cost of a qualified interpreter for a one-hour attorney-client meeting in Utah ranges from $40 – $50 per hour, at a two hour minimum (plus possible incidental costs). Therefore to successfully establish a defense of undue burden an attorney must demonstrate that spending $80 – $100 is an undue burden relative to the overall operational revenues of the firm or office. I have never seen this argument succeed even with respect to a pro-bono client.
5. Isn’t the court responsible to provide an interpreter for my client who is Deaf?
State and local courts are governed by Title II of the ADA and have an obligation to give primary consideration to the aid or service requested by the person who is Deaf when providing effective communication. See 28 C.F.R. § 35.160(b)(2). Furthermore, Utah law gives the responsibility for providing an interpreter for any particular judicial or quasi-judicial function to the presiding officer overseeing the specific function. See Utah Code Ann. § 78B-1-2002 (2008). Judicial and quasi-judicial functions include, but are not limited to, “civil and criminal court proceedings, grand jury proceedings, proceedings before a magistrate, juvenile proceedings, adoption proceedings, mental health commitment proceedings, and any proceeding in which a hearing-impaired person may be subjected to confinement or criminal sanction.” Id. §§ 78B-1-202(1), –208. Note that the court’s obligation to provide interpreters, under both federal and state law, does not extend to out-of-court meetings between an attorney and a client who is Deaf, or in court “counsel table” communications. However, if the court appoints counsel for a defendant who is indigent it is also responsible to appoint and pay for an interpreter for all parts of the proceeding, including preparation. See id. 78B-1-202(5). Interpreters must be certified by the State of Utah, and may be subjected to further voir dire by the court and the person who is Deaf before being approved to interpret for any specific function. See id. § 78-24a-3. As a point of interest, the Utah Administrative Office of the Courts recently added a representative for American Sign Language interpreters to its Court Interpreters Committee. See http://www.utcourts.gov/committees/CourtInterpreter.
6. Doesn’t the Deaf community understand that by demanding interpreters it will force the firm into a position where it can’t (won’t?) accept Deaf clients?
As I have stated, it has been my experience that most attorneys are “do right” people. That being said, when I have explained the requirements of the law to some attorneys, I have been accused of trying to extort money, or the attorneys have threatened to withdraw from the case, yelled at the client or referred to them as stubborn and uncooperative. I have been told that clients who are Deaf are too demanding and should be grateful for anything they get, and that it is my obligation to service the legal needs of ALL persons who are Deaf. Retaliation for invoking one’s rights under the ADA is in itself a violation of the ADA. Refusing to accept a client because of his or her Deafness or in order to avoid the costs of compliance is per se retaliation. See 28 C.F.R. § 36.206.
7. How do I find a qualified (certified) interpreter?
There are several interpreting agencies in Utah. Most can be located on the web at www.uad.org. A list of certified interpreters is also maintained by the State of Utah on the website for Utah Interpreter Programs (the agency responsible for certifying interpreters) at www.aslterpsutah.org. A list of nationally certified interpreters can be found on the website of the National Registry of Interpreters for the Deaf at www.rid.org. As a general rule for legal appointments, the interpreter should hold national certification or at least a Level II certification from the State of Utah in order to satisfy the ADA’s standard of “qualified.”
Attorneys must see things from the client’s perspective while understanding the requirements of the law. Deaf clients, like hearing clients, want to understand their legal issues, participate in their cases and develop trust, communication, and an honest dialogue with their attorneys. When clients can’t effectively communicate with their attorneys, those goals quickly erode, and such erosion can only lead to deficient representation.
The Department of Justice actively enforces the ADA on behalf of clients who are Deaf and are in need of access to legal counsel. For examples of such enforcement see:
DOJ Settlement with Joseph David Camacho, Esq. http:/www./ada.gov/albuquerue.htm
DOJ Settlement with the Law Office of Cohen and Jaffee LLC http://www.ada.gov/cohenjaffe.htm
DOJ Settlement with Gregg Tirone, Esq http://www.ada.gov/tirone.htm.
DOJ Settlement with Clifford B. Hearn & Clifford B. Hearn, Jr, P.A. http://www.ada.gov/hearn.htm
1. The use of a capital D refers to Deafness as a cultural identity, a small d refers to absence of hearing as a medical condition.
2. Many persons who are Deaf have direct VRS numbers, meaning the call will automatically include the VRS provider with no extra steps. If not VRS services can be reached at:
Sorenson VRS – 1-866-FAST-VRS;
HOVRS (Now called PURPLE) – 1- 877-467-4877; or
Locally at Interwest VRS – 1-866-258-1163
3. Section 44 of the Internal Revenue Code establishes a credit for small businesses, and section 190 establishes tax deduction for businesses generally respecting expenses for such accommodations. The tax credit is for businesses with total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of providing sign language interpreters. The deduction is available to all businesses in an amount not to exceed $15,000 per year.
4. Attorney/client privilege can extend to interpreters when the communication being interpreted would be otherwise privileged.
DALE H. BOAM divides his time among his positions as an Associate Professor of Deaf Studies Utah Valley University, his small Salt Lake City solo practice – The Law Offices of Dale H Boam P.C., and consulting nationally on the rights of persons who are Deaf.