Sign Language Interpreters: Who Pays?

• Publication year: 2004
• Pages: 29
• Citation: Vol. 33 No. 4 Pg. 29

33 Colo.Law. 29 Colorado Lawyer 2004.

2004, April, Pg. 29. Sign Language Interpreters: Who Pays?

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Vol. 33, No. 4, Pg. 29

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 29]

Departments
Access to Justice
Sign Language Interpreters: Who Pays

Readers interested in contributing an article on legal services, pro bono, and access to justice topics should contact Jo Ann Viola Salazar at jvsalazar@cobar.org

by Eric Maxfield

Eric Maxfield is Attorney and Coordinator of the Protection and Advocacy for Individual Rights Program at The Legal Center for People with Disabilities and Older People - (303) 722-0300 or (800) 288-1376

In enacting the Americans with Disabilities Act ("ADA"),1 Congress found:

Individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; . . .2 (Emphasis added.)

Title III of the ADA establishes a right to equal access to public accommodations. Both Title III and U.S. Department of Justice ("DOJ") regulations interpreting the ADA specifically include the offices of lawyers in the definition of public accommodation.3 In addition, Colorado's Rules of Professional Conduct ("Colo.RPC" or "Colorado Rules") contain ethical rules that are implicated when representing (or considering representing) a client who is deaf or hearing impaired.4

Therefore, attorneys would do well to consider effective communication as both an important civil right and as a necessary component of competent practice. The following questions are posed from the perspective of an attorney in private practice, licensed in Colorado.5 Through this question and answer format, the article addresses the statutory and ethical duties of attorneys to clients who are deaf or hearing impaired to ensure effective communication through the provision of sign language interpreters.6 As such, this article spells out statutory obligations concerning an individual's right to participate fully and equally in the stream of commerce and in our legal system. Persons who are deaf often and aptly characterize the right to effective communication in our legal system as the right to full, rather than second-class, citizenship.7

Question 1

"Do I have to provide a sign language interpreter during the initial meeting with a potential client who is deaf, even if I ultimately decline to represent the potential client?"

Answer: "Effective communication" is the responsibility of an attorney to any person who seeks his or her services.8 Just as a ramp will allow a person who uses a wheelchair for mobility to access a building, effective communication through the provision of a sign language interpreter ensures that an individual who is deaf will enjoy access to services offered to the public. Moreover, under the ADA, it is not adequate to have a uniform policy of writing a declination/rejection letter, expecting that this will suffice for an individual who communicates by sign language. This is because Title III requires that a public accommodation provide equal access (distinguished from a uniform policy that may disproportionately and negatively impact individuals with disabilities) to all benefits of a service, such that the access is equal to that afforded to other individuals.9

Fluency in sign language does not indicate fluency in English or literacy. Many individuals who are deaf use American Sign Language ("ASL") ". . . as their primary language and means of communication."10 Although derived from English, ASL is a distinct language, "with a separate historical tradition, and separate morphological and syntactic principles of organization."11 Again, under ADA requirements for effective communication, it is the lawyer's duty to assess whether the recipient of his or her declination/rejection letter can understand what is written.

Once the lawyer has determined that the would-be client requires an interpreter for effective communication, the attorney must provide one, unless an undue burden would result (see the answer to Question 2 for a discussion of "undue burden").12 It is normally acceptable to set an appointment through the use of written notes (if the person understands that communication).13 The DOJ (analyzing 28 C.F.R. § 36.303 regarding "auxiliary aids") directs: "The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved."14

Furthermore, the DOJ emphasizes that the ADA does not limit the requirements for the provision of interpreter services to the most extreme circumstances.15 Instead, the DOJ indicates that a wide range of communications involving health, legal matters, and finance may be sufficiently lengthy or complex to require the provision of interpreter services.16 It is an effective practice for all lawyers to contact interpreters well in advance of receiving contact by an individual who is deaf so as to learn appropriate retainer procedures.

Question 2

"Assume I agree to represent an individual who is deaf and who uses a sign language interpreter for effective communication. What if it becomes apparent that the case is more complex than expected and will incur many times the cost of interpreting than was originally or reasonably expected?"

Answer: Over time, as different protected classes come to more full participation in our society, lawyers accept the costs of participation as a natural and necessary part of "overhead" expenses. Not coincidentally, this is the perspective on costs formalized in the ADA.17 The costs of participation are not specific to an individual, but general to us all as part of the cost of doing business. In determining whether an "undue burden" exists, it is inappropriate to compare the cost of an interpreter with the payment received from a client. The appropriate comparison is between the cost of the interpreter and the resources or overhead of the organization.18

As long as the cost of the interpreter is not unduly burdensome, attorneys must provide for effective communication.19 Even if the cost becomes unduly burdensome (for more on "undue burden," see the answers to Questions 5 and 7 below), there are other considerations that may limit an attorney's ability to decline to provide an interpreter (for example, the Colorado Rules noted in the answer to Question 10 below - Colo.RPC 1.14, 1.3, and 1.4).

Question 3

"May a family member or member of the law firm use sign language for an...