Communication Access Funds for Legal Services

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NAD Advocacy Statement:¹
Use of Communication Access Funds to Access Legal Services (2008)

Introduction

People who are deaf² continue to encounter significant communication barriers when attempting to obtain private legal services and representation, despite the mandate of the Americans with Disabilities Act of 1990 (ADA). The ADA requires attorneys engaged in private practice to provide equal access to their services by providing auxiliary aids and services necessary to ensure effective communication between individuals who are deaf³ and their attorneys. Such auxiliary aids and services include, but are not limited to qualified sign language interpreters, real-time captioning, and assistive listening systems/devices (hereafter “communication access services”).⁴ Many private attorneys may be unfamiliar with their obligations under the ADA. Others may be unwilling to incur the costs to provide the necessary communication access services. As a result, many deaf people are unable to retain private attorneys for critical legal matters including, but not limited to, criminal law proceedings, family law issues, probate, and employment law matters.

The National Association of the Deaf (NAD) advocates for the establishment of a state-based communication access fund (CAF) in each state to facilitate and ensure the provision of communication access services. The CAF would cover the expenses for communication access services to ensure effective communication between private attorneys and deaf individuals. Expenses eligible for coverage would include qualified sign language interpreters, real time captioning, or any other auxiliary aid or service used to ensure effective communication between the attorney and a deaf individual, who is most often a prospective or actual client (hereinafter “client”). The CAF would remove the cost of providing communication access as a barrier to private attorneys accepting deaf clients. 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. Through the CAF, each attorney would incur a small annual fee rather than the full cost of communication access when the attorney takes on a case that requires the provision of auxiliary aids or services to ensure effective communication.

Statement of the Problem

The U.S. Department of Justice has settled two matters involving different attorneys who were found to have failed to ensure effective communication with their deaf clients. These matters are classic examples of situations commonly faced by deaf individuals nationwide.

In Albuquerque, New Mexico, a deaf woman retained an attorney to sue a hospital that failed to provide her with qualified sign language interpreters while her young son was hospitalized. Ironically, the attorney did not provide interpreters to ensure effective communication with his deaf client and suggested that the deaf client’s nine-year-old son – the same one who had been hospitalized – serve as the interpreter. The deaf client refused to permit her son to interpret because of the son’s young age and relationship to the client. As a result, the lawyer withdrew representation. Without continued legal representation, the deaf client’s lawsuit was dismissed for failure to respond to discovery. The U.S. Department of Justice opened an investigation resulting in a settlement and payment of damages by the attorney to the deaf client.⁵

Similarly, in Rochester, New York, a deaf woman who retained an attorney to represent her in her divorce proceeding made several requests for the attorney to provide her with a sign language interpreter. The woman also made repeated efforts to educate the lawyer about her right to effective communication under the ADA. However, the lawyer refused to provide an interpreter for several meetings with the deaf client and, on a few occasions, requested that the client’s sister act as an interpreter – a violation of the ADA. When the lawyer met with the deaf client in court, the lawyer utilized the services of the court’s interpreter. At other times, the lawyer and the deaf client communicated by paper and pen, lip reading, and phone calls using telephone relay services. Due to the complexity of the case, the cumbersome process of writing by pen and paper, and the fact that lip reading spoken English requires considerable speculation, the deaf client did not understand everything that her lawyer told her. The U.S. Department of Justice opened an investigation resulting in a settlement and payment of damages by the attorney to the deaf client.⁶

These two publicized settlements reflect the insidious nature of the problem. In both cases, the attorneys argued that they provided effective communication to their deaf clients even without qualified sign language interpreters.⁷ Both attorneys apparently thought it appropriate to use family members, one of whom was a minor, to interpret complex legal issues. Apparently, these attorneys did not wish to incur the expense of retaining a qualified interpreter, yet they did not invoke the undue burden exception within the ADA. The ADA recognizes that lawyers do not have to provide a specific type of auxiliary aid or service if they can demonstrate that doing so would impose an undue burden.⁸ To demonstrate an undue burden, lawyers must show that the cost to provide communication access services would significantly impact their practice and financial resources. Such a showing may be difficult for most law offices. Even if an undue burden can be shown, the lawyer would still have to provide alternative communication access services that would, to the maximum extent possible, ensure effective communication.⁹ Yet, in these two cases, the U.S. Department of Justice determined that the attorneys’ attempt to provide alternative communication access services failed to ensure effective communication with their clients who relied on American Sign Language to understand complex legal matters.

Communication Access Funds

Recognizing that many deaf people are denied access to legal services, a few bar associations have begun to pool resources to make access more readily available to this community and to ensure that no one attorney bears a disproportionate burden in providing communication access services.¹⁰ Specifically, in New York, Colorado, and Pennsylvania, local bar associations have made funds available to pay for the auxiliary aids and services needed when an attorney communicates with a deaf individual. The State of Maine has a legal interpreting fund that any attorney licensed in Maine can use to pay for sign language interpreters and real-time captioning. The State Bar of Texas has a fund that operates similarly to the one in Maine, except that the Bar’s funds are used rather than state funds. The Pennsylvania Bar Association has a fund that reimburses bar members for some interpreter and real-time captioning expenses, based on availability of the funds. These initiatives and programs are positive steps that increase access to legal services for deaf people, but each have limitations that can be modified:

The CAF should reimburse the full cost of providing auxiliary aids and services without a cap. Except for Maine and Texas, these CAFs cap reimbursement at levels that may fall below the full cost incurred. Without full coverage, attorneys and deaf individuals will continue to face the same problems existing now.
The CAF should be funded in a manner that is readily renewable, rather than from grants that have no guarantee of renewal. Currently, with the exception of Maine’s fund which draws from the state treasury and is required by state law, all existing CAFs rely in significant part on grants with no guarantee of renewal.
The CAF should cover any necessary communication access service. With the exception of CAFs in Maine, Pennsylvania, and Texas, existing CAFs offer reimbursement for American Sign Language interpreters only. However, not all deaf individuals use American Sign Language.¹¹ Therefore, CAFs should cover other services such as real-time captioning services to accommodate non-signing deaf people.

Policy Recommendations

The NAD urges adoption of the CAF concept and recommends that state bar associations and/or licensing agencies establish CAFs with five crucial elements:

CAFs should cover 100 percent of expenses for the provision of auxiliary aids and services to ensure effective communication between private attorneys and all people who are deaf, including prospective clients, clients, witnesses, and others with whom the attorney may communicate.
CAFs should be administered by the fee-collecting agency in each state. In some states, that agency is the state bar association. In other states, it is the licensing board. Statewide coverage ensures that every private attorney licensed in the state contributes to and has access to the fund.
To ensure the longevity of the CAF, the fee-collecting agency should require each licensed attorney to pay a nominal amount of dues to generate revenues for the CAF. This approach fully spreads the cost of providing auxiliary aids and services among all attorneys in a state. In addition, this approach comports with the spirit and letter of the ADA which requires the public accommodation to be responsible for effective communication and equal access to their services. Alternatively, the state may enact state legislation requiring a CAF as Maine has done.
CAFs should cover all auxiliary aids and services necessary to meet the diverse needs of the deaf community.¹² These CAFs may ensure coverage of appropriate auxiliary aids and services in one of three ways. The administering agency may provide a “one-stop shop” where attorneys place requests for accommodations and the agency arranges for the provision of auxiliary aids and services. Alternatively, the agency may ask attorneys to arrange for the accommodations directly with the service provider and have the bill sent to the agency for payment. Finally, the agency may request that attorneys arrange, provide, and pay for communication access services and seek reimbursement later from the CAF. At all times, the attorney and administering agency need to ensure that the auxiliary aids and services provided are appropriate and effective for the individual being served.
The administering agency should couple the CAF with information educating attorneys about the ADA requirements and how to work with people who are deaf. Even when costs are not a consideration, some attorneys may decline to accept deaf clients on the basis of misconceptions or stereotypes about deaf people.

Conclusion

The availability of statewide CAFs would remove a significant barrier for deaf people seeking assistance from the legal profession. The statewide CAFs would also help ease the financial responsibility attorneys and law firms bear in order to meet their obligations under the ADA to ensure effective communication with people who are deaf. The development of statewide CAFs makes both financial and practical sense, and ensures effective communication mandated by the ADA.

This advocacy statement was prepared by the Civil Rights Subcommittee of the Public Policy Committee, and approved April 2008 by the NAD Board of Directors.

¹ This advocacy statement is for advocates and others to use in educating state personnel on the benefits and use of communication access funds by deaf individuals to access legal services.

² The term “deaf” is to be interpreted to include individuals who are hard of hearing, late deafened, and deaf-blind.

³ Title III of the ADA, 42 U.S.C. §§ 12181-89, provides people with disabilities the right to equal access to public accommodations. Both Title III of the ADA, and the regulations issued by the U.S. Department of Justice pursuant to Title III, 28 C.F.R. Part 36, specifically include the offices of lawyers in the definition of public accommodations. 42 U.S.C. § 12181; 28 C.F.R. § 36.104.

⁴ Section 28 C.F.R. § 36.303(a) requires all public accommodations “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…” Section 28 C.F.R. § 36.303(b)(1) includes in the definition of “auxiliary aids and services” “qualified interpreters, notetakers, computer-aided transcription services…assistive listening devices, assistive listening systems ….” Section 28 C.F.R. § 36.303(c) clearly states that a “public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”

⁵ This scenario is drawn from factual allegations contained in a settlement agreement between the U.S. Department of Justice and Joseph David Camacho, Esq. A copy of the settlement agreement can be found at http://www.ada.gov/albuquerue.htm [1].

⁶ This scenario is drawn from factual allegations contained in a settlement agreement between the U.S. Department of Justice and Gregg Tirone, Esq. A copy of the settlement agreement can be found at http://www.usdoj.gov/crt/ada/tirone.htm [2].

⁷ A qualified interpreter is “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.

⁸ 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a); and 28 C.F.R. § 36.104.

⁹ 28 C.F.R. § 36.303(f).

¹⁰ A summary of each of these CAFs is provided in Exhibit A.

¹¹ There are many other forms of auxiliary aids and services, and lawyers are encouraged to inquire and consult with the deaf individual about the means necessary to ensure effective communication. Interpreting comes in many forms including but not limited to American Sign Language (ASL), Signed English, Cued-Speech, Oral, and Tactile (for deaf-blind individuals). In addition, some deaf individuals may also require provision of a Certified Deaf Interpreter (CDI). A CDI, also called a relay interpreter, is a deaf individual certified to interpret as part of a team to ensure effective communication. A CDI is used with any court participant whose communication method is so unique as to require two interpreters working in tandem to ensure comprehension. CDIs are commonly used for individuals with limited language fluency, high visual orientation, International sign languages and/or those who rely on signs recognized by only the individual’s family members and those who communicate with her regularly (known as “home signs”).

¹² See footnotes 4 and 11 for an explanation of the diverse variety of auxiliary aids and services available.

EXHIBIT A

Summary of Existing Communication Access Funds

Colorado – The Colorado Bar Association reimburses bar members for interpreter expenses up to $250 per client. The Bar Association makes these reimbursements via its general funds. Membership in the Bar Association is voluntary for attorneys.

Maine – Maine law requires the state to establish a fund to reimburse attorneys for expenses incurred in providing interpreters and real-time captioning. See, Maine Revised Statutes, Title 5, Chapter 3, Section 48-A(4).

Monroe County, New York –The Monroe County Bar Association fully reimburses bar members for interpreter expenses incurred during the first meeting with the client, not to exceed two hours. Thereafter, the bar association reimburses members for 50 percent of expenses, with a reimbursement cap of $150 per client. Special requests for additional funds are considered on a case-by-case basis. Bar members must hire interpreters from an interpreter agency that contracted with the bar association for an hourly interpreter rate of $45 per hour. Bar members also must submit the actual receipt from the interpreting agency to receive reimbursement. The funds are drawn from general funds and grant money. More information may be found at http://www.mcba.org/member/documents/DEAFundGuidelinesRev08-15-07.pdf [3].

Pennsylvania – The Pennsylvania Bar Association reimburses bar members – primarily those who are in small firms or public interest firms, or those who are solo practitioners or pro bono volunteers – up to $100 per appointment for interpreter or CART expenses, with a cap of two appointments per quarter. Reimbursement is based on availability of the funds. Bar members must submit an invoice to receive reimbursement, and must include a signed copy of a certification form provided on the Bar Association’s website. The interpreter or CART provider used must be registered pursuant to state law with the state office serving deaf persons. More information may be found at http://www.pabar.org/public/committees/disabili/Sign%20Lang.pdf [4].

Philadelphia, Pennsylvania – The Philadelphia Bar Association reimburses bar members up to $100 per appointment for interpreter expenses, with a cap of two appointments per quarter. The cap may be waived at the bar association’s discretion if the bar association determines that money in the fund could go unused that year. Bar members must submit an invoice to receive reimbursement. The funds are drawn from general funds and grant money. More information may be found at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebSe... [5].

Texas – The State Bar of Texas has a program called Sign-Up that reimburses bar members for expenses reasonably incurred in providing interpreters. To request funds, an attorney must e-mail the entity administrating Sign-Up funds with information about the type of case and an estimate of the number of hours of interpreter services that will be needed throughout the life of the case. Once requests are processed, confirmation is sent that is based on several factors, such as the specific dollar amount available, the number of interpreted hours requested, and the amount requested. Attorneys must then submit invoices to receive reimbursement. Sign-Up is funded by a $20,000 grant from the Texas bar association. More information may be found at http://www.texasbar.com/Content/NavigationMenu/Other_Services/Attorney_M... [6].