It has been a month of reflections about the ADA, signed into law 30 years ago last Sunday by President George H.W. Bush. Taking in the many perspectives on what the law has and has not done, I found myself thinking about something basic, yet rarely discussed: How does the ADA affect my work as a lawyer?
Lawyers’ Duties to Clients
A lawyer’s job in an attorney-client relationship is, with few exceptions, to represent the client. “The touchstone … is the lawyer’s obligation to assert the client’s position under the rules of the adversary system, to maintain the client’s confidential information except in limited circumstances, and to act with loyalty during the period of the representation.”[1] One of the most compelling aspects of ADA work to me has been how it draws me into thinking about the fundamental obligation to represent the client in new and deeper ways.
The Ethical Obligation to Represent Clients
The lynchpin of effective representation is the client’s right to know what is happening and to make substantive decisions about the case. Under both New York and the ABA Model Rules of Professional Conduct, lawyers must:[2]
- Let clients make important decisions, such as whether to settle
- Learn what objectives clients have for the case or matter
- Respect and abide by the clients’ decisions about their objectives
- Tell clients about important developments right away
- Keep clients reasonably informed about the case or matter
- Respond promptly to clients’ reasonable requests for information
- Talk with the client if the lawyer knows the client is expecting the lawyer to do something that is not permitted
This list is a touchstone for lawyers in our work with all clients, including clients with disabilities.
The ADA and Lawyers
People with disabilities often face discrimination from professionals. Doctors have been prominent in the discussion, particularly in the recent Coronavirus crisis, but lawyers are not exempt. We need to heed the ADA.[3] Some may think this is a simple matter of avoiding obvious bias, and that is important, but the ADA runs deeper. Disability discrimination is “often the product, not of invidious animus, but rather of thoughtlessness and indifference.”[4] To avoid discrimination, we must make an effort to understand where clients are coming from.
Otherwise, lawyers may discriminate through put downs and demeaning treatment, large or seemingly small. I’ve learned, and continue to learn, about unfamiliar disabilities and unfamiliar experiences of disability—such as when disability intersects with racial or other oppression.
The ADA spurs fundamental change in legal work. It requires reasonable accommodations. That means changing our standard way of doing business. The adjustments can range from simple measures to make our offices more welcoming—like making the height of security and reception counters accessible to people in wheelchairs—to learning new ways to communicate.
Presuming Capacity
A particular danger is the tendency to assume that clients with disabilities cannot make their own decisions. “The assumption that the client, when properly advised and assisted, is capable of making decisions about important matters”[5] applies to clients with disabilities. In other words, lawyers presume clients can understand and make decisions about their case or legal matter—that they have legal “capacity.” Many disabilities, of course, do not affect capacity at all.
Even disabilities that affect capacity can often be accommodated, I’ve learned. A client may be able to make decisions if we use plain language, include a trusted aide or a family member when necessary for effective communication, or just give time to process or recover from a health crisis.
Accommodations take some work, but they have taught me to communicate more clearly and given me a broader understanding of the world. Ultimately, following the ADA benefits lawyers and all of our clients—disabled and nondisabled alike.
Resources
People with disabilities are a varied group, and the client is the ultimate authority on the right treatment and terminology. But there are some basics we should all know. Guides are widely available and essential knowledge for legal professionals. A few examples:
- United Spinal, Disability Etiquette: Tips on Interacting with People with Disabilities
- National Center on Disability and Journalism, Disability Language Style Guide
[1] N.Y. Rules of Prof’l Conduct preamble ¶ 2.
[2] This list is drawn from Rules 1.2(a) and 1.4 of both the New York and ABA Model Rules. The New York rules are based on the ABA Model Rules, and unless otherwise indicated, citations are to rules from both sources.
[3] 42 U.S.C. § 12182; see 42 U.S.C. § 12181(7)(F) (expressly listing lawyer’s office as covered); see also Alex B. Long, Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism, 47 U.C. Davis L. Rev. 1753 (2014) (discussing law firm discrimination against attorneys with disabilities).
[4] Alexander v. Choate, 469 U.S. 287, 295 (1985).
[5] Rule 1.14 cmt. 1.
ADA Update 