Representation of Clients Who Are Deaf or Hard of Hearing
| Jurisdiction | United States,Federal,Vermont |
| Citation | Vol. 2006 No. 07 |
| Publication year | 2006 |
July 2006 - #7. Representation of Clients Who Are Deaf or Hard of Hearing
Consider this: A prospective client who is deaf or hard of hearing comes to your office for an initial consultation, requests an American Sign Language (ASL) interpreter(fn1) and asks you to pay for the interpreter's services. You agree to the request, and meet your prospective client with an ASL interpreter present. After considering the facts of the case, you decide not to take the matter. Do you have to pay for the interpreter?
While many Vermont attorneys may have had some experience representing clients with disabilities, how many are able, with reasonable confidence, to determine under what circumstances it may be necessary or required to provide the services of an ASL interpreter for a client who is deaf or hard of hearing? The answer may be more complex than thought on first blush.
The broad-ranging Americans with Disabilities Act (ADA), passed by Congress in 1990, became effective on January 26, 1991. The codified statement of purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(fn2) In the definitional section of the Act, the term "auxiliary aids and services" specifically "includes qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments."(fn3) There are three major provisions of the ADA: Title 1 regulates "Employment"; Title II addresses "Public Services"; and Title III, pertains to "Public Accommodations and Services Operated by Private Entities." The definition of "public accommodations" in Title III of the ADA, and the Department of Justice regulations, includes law offices.(fn4)
Title III provides that "... public accommodations shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities."(fn5) The law further provides that the manner and kind of auxiliary aid or service required will depend on the duration and degree of complexity of the communication involved. Auxiliary aids for persons who are deaf or hard of hearing include:
... qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TTDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.(fn6)
Vermont's Fair Housing and Public Accommodations Act provides the state's parallel to the ADA provisions discussed above.(fn7)
If a client who is deaf requests the services of an ASL interpreter, is the law office required to provide one in order to provide equal access to its services? The ADA requires effective communication, but not necessarily an ASL interpreter. It may be that other alternatives are available to ensure effective communication with a client who is deaf or hard of hearing. Consideration must be given to the duration and complexity of the matter, as well as the client's ability to communicate and comprehend. However, the circumstances often warrant the services of an interpreter to ensure equal access to the law office's services, as many, if not most, legal matters entail sufficient detail and complexity (and sometimes duration) to give pause to all but the most seasoned and savvy clients.
Some difficulty arises in situations where the person seeking legal services is not deaf, but is hard of hearing. Suppose such a potential client presents for an initial consultation at the law office and is wearing a hearing aid. She is not deaf but requests an ASL interpreter. Is the law firm required to provide one? Suppose the same potential client arrives for the initial meeting wearing a hearing aid, but does not request an interpreter. Is the law firm required to provide one? The answer, of course, depends upon the circumstances in each case. The key in determining when to provide an ASLinterpreter when representing deaf or hard of hearing persons is ascertaining the level of communication between the client and the law firm. It can be a daunting task to assess whether or not communication is effective.
In either of the above instances involving hard of hearing, but not deaf, persons, if there is any indication, verbal or otherwise, that the client and the law firm cannot communicate effectively to ensure that the latter fully understands the legal needs and goals of the client, the law firm should provide an interpreter. If there is evidence that the client does not fully understand the nature, extent, complexity, risks, and benefits of the legal matter, including information of a general...
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