DOJ Applies ADA to Practice of Law

August 9, 2007. The Department of Justice's (DOJ) Civil Rights Division (CRD) and Joseph David Camacho, an attorney in the state of New Mexico, entered into an agreement that settles an administrative complaint that alleges violation of the Americans with Disabilities Act (ADA).

The agreement provides for application of the ADA to the practice of law, and requires attorneys to provide and pay for the costs of sign language interpreters and transcriptions for deaf persons.

The agreement does not address the applicability of the ADA to law firm's use of web sites, e-mail, or other information or communications technologies. Nor does it address law firm's obligations to blind or mentally disabled persons.

This settlement agreement resolves a complaint filed against a small law office in Albuquerque, New Mexico, that did not provide a sign language interpreter to a deaf client. The agreement provides that "written notes, e-mail, telephone relays" are not sufficient to satisfy the obligations of attorneys under the ADA to deaf persons.

Wan Kim, the Assistant Attorney General in charge of the CRD, stated in a release that "We hope that this agreement will be a model for other attorneys and law firms." However, this is not the DOJ's first application of the ADA to a law firm.

The ADA regulates a "public accommodation". 42 U.S.C. 12181(7)(F) defines "public accommodation" to include an "office of an accountant or lawyer".

42 U.S.C. 12182, at subsection (a), provides 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 ..."

Subsection (b)(2)(A)(iii) provides further that such discrimination includes "a failure to take such steps as 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 entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden".

The present action relies upon the clause "absence of auxiliary aids and services".

The agreement requires Comacho to publish a notice in his law office, and in his web site, as follows: "To ensure effective communication with clients and companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, note takers, written materials, assistive listening devices and systems, and real-time transcription services."

The agreement provides that law firms are covered by the ADA, and that law firms must provide sign language interpreters and transcriptions. However, the settlement agreement leaves unanswered numerous related questions regarding the applicability of the ADA to law firms.

While the agreement clearly addresses the disability of deafness, it does not address a law firm's obligations to persons with other disabilities. For example, what obligations exist to provide blind persons with audio and/or Braille copies of correspondence and pleadings?

While the agreement clearly addresses the use of sign language interpreters, and providing transcriptions, it is silent as to technology based services. For example, does the ADA impose obligations upon law firms that maintain web sites? Must a law firm with a web site provide Braille and/or audio versions? Must a law firm that communicates with e-mail also provide Braille and/or audio versions?

The DOJ has imposed communications technology based obligations upon hotels. See, for example, January 25, 2007, agreement with Hampton Inn, which requires "TTY's, closed captioning televisions, visual notification devices". See also, December 14, 2006, agreement with a New York City hotel that requires "televisions with built-in captioning features or close-captioning decoders provided for use by persons who are deaf or hard of hearing", "portable visual alarms and communication devices", and "telephone wiring in units to enable persons with hearing impairments to utilize the portable visual alarms and communication devices". And see, July 18, 2007, agreement with a Kansas City hotel that regulates the location and functions of telephones.

While the present agreement clearly covers clients of a law firm, it is not clear as to a law firm's obligations to non-clients. What of persons who seek to become clients of a firm? What of a deaf person's legal opponent's counsel? Does opposing counsel have an obligation to provide materials in multiple formats? Is the answer dependent upon whether or not the disabled person proceeds pro se?

While the agreement's mandatory notice uses the term "clients", the agreement elsewhere uses the terms "individual" and "individuals".

The DOJ is not forthcoming on these issues. TLJ spoke with DOJ attorneys who have handled disability rights matters. They declined to discuss this case, other ADA cases involving law firms, or the activities and operations of the DOJ that relate to application of the ADA to law firms or the practice of law. John Wodatch, Chief of the CRD's Disability Rights Section, did not return a phone call last week from TLJ. Camacho did not return a phone call from TLJ either.

The costs imposed by this agreement are not insignificant. The DOJ only faulted Comacho for failing to provide a sign language interpreter. However, the agreement also requires "real-time transcription services". The cost of transcribing meetings, hearings and trials greatly exceeds the cost of maintaining an interpreter at these events.

Actions such as the present one may decrease the availability of legal services to deaf persons, and other persons protected by the ADA, especially pro bono representation. Discrimination against protected classes of persons by public accommodations, such as "an inn, hotel, motel, or other place of lodging" (see, 12181(7)(A)), "a restaurant, bar" ( 12181(7)(B)), or a "motion picture house" ( 12181(7)(B)) are obvious, and evidence of discrimination is readily available.

In contrast, law firms' decisions to represent particular prospective clients are often based upon a complex range of criteria, including whether the firm possesses the experience and expertise necessary to take the case, the absence of conflicts of interest, the current workload of attorneys in the firm, and the ability of the prospective client to pay legal retainers, fees and costs. Law firms can easily avoid DOJ imposed ADA related costs by declining to represent protected persons, while citing non-ADA related criteria. Comacho, on the other hand, cited the cost of hiring a sign language interpreter in a letter to the complainant.

Perhaps it is also noteworthy that as part of this settlement the complainant is bound to "file no further disciplinary complaints against Joseph David Camacho in connection with the matters described in the Settlement Agreement". That is, the DOJ's CRD seeks to diminish the state bar association's historic role in regulating the ethics of its members, and to replace professional self-regulation with DOJ regulation, inasmuch as the ethics of attorney activities relate to federal statutes.