Oregon State Bar Bulletin — FEBRUARY/MARCH 2008



Dan Arkin has been a strong young man, striding confidently towards the future. And he’s been a successful lawyer. He just hasn’t been both at the same time.

"In the blink of an eye, I changed from an ordinary white male teen into some kind of second-class ‘minority,’" says Arkin, who became a quadriplegic — just weeks shy of high-school graduation — when a car in which he and his fishing buddies were riding flipped over.

Arkin, who went on to college and Loyola Law School and who now advises on disability issues, has a message for his fellow lawyers: You are us.

"It could happen to anybody at any time," Arkin, who lives in Eugene, says of becoming disabled. "Everyone is disabled at some point in life, even if it’s merely via old age. Any client you represent may have an unidentified — yet relevant — disability, so you need to know how to interact without being offensive or feeling uncomfortable yourself."

What do lawyers need to know about representing disabled persons? The Bulletin asked lawyers and other experts on disability to answer some basic questions.

Mobility Disabilities
What does the Americans With Disabilities Act (the ADA) require in terms of physical access to a lawyer’s office?

Since 1992, the ADA has barred places of public accommodation — including law offices — from discriminating against individuals with disabilities.

"The ADA is read very narrowly by the federal courts," says Bob Joondeph, executive director of the Oregon Advocacy Center, which provides free legal services to persons with disabilities. "It’s usually pretty clear if your client is covered by the ADA. For a general practitioner, it may be someone in a wheelchair. If they’re hard of hearing to the point of being covered by the ADA, it would be obvious. On the mental-health side, even for a personality disorder, it must be pretty severe to rise to the level of disability under the ADA: it must interfere with major life activities."

For mobility-disabled clients covered by the ADA, it means that an office needs to have accessible parking, route to the building’s entrance, entry and doorways, according to Darrel Ackerman, former member of the Oregon Disabilities Commission who has been a paraplegic since 1972, as a result of an automobile accident.

What if the lawyer’s office is in his home?
If it’s open to the public — meaning that he sees clients there — it must be accessible, says Ackerman.

What if the office was built before the ADA requirements existed?
There is an ongoing obligation to remove architectural barriers when it is readily achievable to do so, says Portland lawyer Bob Pike, whose firm provides consulting services for barrier-free design and who has been in a wheelchair himself since he fell from a third-story window ledge at age 20.

What if the lawyer rents his office space?
The ADA allows him and his landlord to make those choices via their lease or rental agreement, says Pike. If they fail to do that, then both potentially are liable if they are sued under the ADA. (Generally speaking, Pike says, the landlord probably would be liable for issues relating to common-use areas, such as parking, the building’s entrance and restrooms shared with other building tenants, while the lawyer probably would be liable for issues relating to access to and through his office door and around his office, its restroom(s) and conference room(s).)

What if the landlord isn’t willing to make, or pay for, the required changes?
"I think that puts the tenant/lawyer in a very difficult position," says Pike. "If you remain in such a situation, you assume the risk that a person with a disability will challenge the compliance of the landlord and include you."

Is there a way a lawyer can comply with the ADA for mobility-impaired clients without modifying his office to make it physically accessible?
Yes, says Ackerman: he can provide a reasonable alternative, such as meeting his client at his client’s residence, a restaurant or another accessible location.

Is that legally sufficient?
Probably yes, although Ackerman points out that the potential for discrimination still exists if the mobility-impaired client doesn’t have access to the same quality of work that clients who can come to the lawyer’s office would have. (For example, a lawyer might be less willing to take on a mobility-impaired client because he can’t bill for the time it takes to travel to the accessible alternative meeting place.)

Another problem is that the lawyer may not know a new client has a mobility disability. "You might be able to mitigate that by making sure your staff advises everyone that your office is not accessible," says Pike.

While you’re not supposed to inquire into whether a potential client has a disability, the Oregon Advocacy Center’s Joondeph says that "It’s a good practice to have a generalized statement (to the effect that) ‘If you need an accommodation, let me know.’ That’s better than, ‘Are you going to cause me a pile of trouble?’" says Joondeph.

Are "reasonable accommodations" good enough from a disabled person’s point of view?
"What the ADA requires and what’s useful in terms of serving clients may be two different things," says Joondeph, diplomatically. "The latter is an ethical question."

Attorney Theresa Soto, who has cerebral palsy, is less diplomatic.

"I interviewed one place that was across from an Elmer’s," says Soto, who uses a cane indoors and a scooter outside. "They told me that’s where they would interview a client in a wheelchair. I’m not in a wheelchair, but ethics wouldn’t let me feel good about that. Clients tend to cry, be upset. Being in Elmer’s is going to be embarrassing for them."

Soto says that when she sought office space for her solo practice, she "looked at an office that looked great, doors wide enough, etc. It only had one handicapped space, but I thought, ‘I won’t have a handicapped client every day.’ But the landlord’s secretary was handicapped, and he planned for her to park there. I wasn’t going to go all the way to the Beaverton-Hillsdale Highway for the appearance of access." She rented space elsewhere.

Former Oregon Disabilities Commissioner Ackerman, who ironically had written a master’s thesis on structural accessibility before he ever dreamed the issue would dominate his personal life, says that "As a population, we understand black/white discrimination considerably better than we do disabled discrimination."

He says the question that should be asked when assessing accessibility is: "If I substituted ‘black’ or ‘woman’ for ‘disabled,’ would that be acceptable?"

"To say, ‘A black man or a woman can’t come into my office, but I will go to them’ or ‘A black person can come, but only via the back door:’ If it’s something I wouldn’t consider doing in those (race or gender) circumstances, I wouldn’t do it for the disabled," says Ackerman.

Ackerman says the next question is, "‘Is there (nonetheless) a reason why it is not reasonable to do it for everyone?’ For example, it’s not reasonable to make every seat in a movie theater a size that would accommodate wheelchairs; the population of disabled wouldn’t justify it. If you already were in a building that’s not accessible when the ADA law was passed, that’s where you make accommodations. But a flight of stairs is a great big sign that we’re not welcome here. As a lawyer, I’d never make that decision. My nephew just got his law license. I wouldn’t expect him to rent inaccessible space. I would slap him upside the head and say, ‘What are you thinking?’"

Service Animals
Are there any requirements or limitations on the use of guide dogs or other service animals?
Many people with a disability use service animals to assist them. A service animal may be any animal that is individually trained to provide assistance to an individual with a disability. "All of my clients who have had service animals have used dogs, but a person can chose whatever type of animal will meet their needs. It can be a bit difficult to tell when an animal is a service animal because there is no licensing or certification available in most cases," says Grants Pass Legal Aid attorney Joan-Marie Michelsen. "Some people put a jacket or other item on an animal to mark it as a service animal, but this is not required. If a client comes to my office with a dog, I ask if it is a service animal, and if so in it comes. Many people take their service animals everywhere they go. The ADA supports them by requiring that most places permit service animals, even if pets would be excluded."

Hearing Disabilities
Are lawyers required to do anything for clients with hearing and other non-mobility related disabilities that rise to the level of being covered by the ADA?

Yes, they are obligated to provide accommodations — such as auxiliary aids or services — to ensure effective communication with clients who are disabled as defined by the ADA, says Pike. And if there’s a cost involved, such as hiring a sign-language interpreter, that cost generally must be borne by the lawyer, not the client.

"You have to pay for their interpreter, if they need one to be able to communicate effectively," says the Oregon Advocacy Center’s Joondeph. "That’s the one that catches people up."

But does the client need an interpreter to be able to communicate effectively? In other words, what accommodation is sufficient to ensure effective communication?

"In a meeting with a deaf person, would passing notes back and force be effective communication?" asks Pike. "If it is a short meeting, maybe, but probably not if it is an initial consultation where important and confidential information is being communicated."

"You don’t have to go for the most-expensive option," adds Joondeph. "The lawyer can make decisions between effective alternatives, but you can’t choose something ineffective."

Joondeph notes that conducting a meeting by passing notes "obviously is going to take twice as long, and you can’t charge for the extra time. It may go a lot faster with a sign-language interpreter," even though the lawyer is paying for the interpreter.

Clients whose hearing impairments don’t rise to the level of being covered by the ADA nonetheless may need special attention.

"Often the client will appear not to understand when he simply can’t hear," Lake Oswego attorney Shirley Bass wrote in an Elder Law Section’s newsletter article on "The Elder Friendly Law Office." "Make it easy for the client to watch your mouth. Speak clearly, slowly, in a low frequency and in short, simple sentences. Keep within three to six feet of the client, if possible. Avoid background noise such as traffic sounds, overhead music or photocopiers, and be aware of the potential problem of background noise when meeting or speaking away from the office."

Lawyers even may want to consider buying an inexpensive amplified stereo listener, such as the headset/amplifier combination sold by Radio Shack, for their conference room, Portland attorney Kristianne Cox advised in another Elder Law Section newsletter article on "Establishing an Elder Law Practice." "Not all clients with hearing deficiencies wear hearing aids," she said, "and not all hearing aids work effectively."

Vision Disabilities
Is there a similar requirement for clients who are blind or whose vision impairments rise to the level of a disability covered by the ADA?

Yes, the requirement is the same: lawyers must provide vision-impaired clients covered by the ADA with whatever aids and/or services are necessary for effective communication.

"A lot of people assume that needs to be Braille," says Heidi von Ravensberg, a lawyer who teaches a disability law seminar at the University of Oregon School of Law and who has been blind since childhood. "But that’s not necessarily the case. Not all blind can read Braille. Maybe larger print, or e-mail via a computer that speaks to the blind client or a human reader or secretary will do. Or even reading over the phone while the client is at home with a speaker and tape recorder."

"If you have a blind client, say, ‘We can’t offer Braille here, but we can do X, Y and Z,’" von Ravensberg continues. "Don’t think that the attorney needs to know all the solutions. The blind person may know, unless he is newly blind. Let him do the guiding on what’s necessary. Don’t assume that you will have to provide more (than to a non-vision impaired client)."

Clients whose vision loss doesn’t rise to the level of being covered by the ADA still may need extra care, Bass pointed out in her Elder Law Section newsletter article.

Because seniors often have difficult with reading, distinguishing objects and glare, Bass recommended that lawyers have a magnifying glass available and arrange seating so the client is not facing a window. Bass noted that the Oregon Commission for the Blind has special devices for the purpose of signing documents, writing letters, etc., and that printed material is easier for visually impaired clients to read when it is in large, plain fonts, double-spaced when possible, with wide margins and in black ink on white stationery.

Age-related Disabilities
What should lawyers know about accommodating older clients generally?

Don’t expect them to bring their disabilities, and any related needs, to your attention, says Arkin, the quadriplegic lawyer-turned-disability activist.

"Elderly folks will loudly and forcefully deny being disabled in any way — despite having many of the same symptoms, ailments or problems as persons with disabilities — because of stigma," says Arkin. "Admitting to having a disability means being devalued by society, your loved ones and yourself and losing your full rights, independence and sense of equal dignity."

Penny Davis, an attorney with The Elder Law Firm in Portland, says there are a number of things lawyers discreetly can do for older clients. These include having a live person answer the phone; furnishing the office with sturdy chairs with arms, low-pile carpeting and no loose carpets; seating the client so he doesn’t face the window/glare and where he can see the lawyer’s face; minimizing background noise; using active voice and short sentences both when speaking and in written materials; asking if he would like larger-size type; taking bathroom breaks and offering to meet with him in his home or care facility when appropriate.

In her Elder Law Section article, Bass noted that "Access to your office is crucial. Often a client will choose a lawyer based on the location of the office."

Bass suggested that lawyers provide maps and clear directions; make sure outside signage is large enough to read at a distance and without glare; do not leave an elderly client standing, even for a few minutes; offer an arm for support, if needed; assist with the removal of his coat and usher him to a suitable chair; make sure tables are high enough to reach without bending or stooping and avoid glass-top tables, which can trip clients with impaired depth perception.

Mental Disabilities
Does the ADA also cover clients with mental disabilities, such as mental illnesses?

Yes, says the Oregon Advocacy Center’s Joondeph, if they rise to the level of interfering with major life activities.

"There are certain cases where it’s clear," says Joondeph, who previously worked as a public defender (PD) and as a legal aid lawyer. "But there’s often not a bright line. People who do elder law run into this a lot."

"Question 1 from the ADA is, ‘Does what they have rise to the level of a disability?’ Question 2 is, ‘Is there any way to accommodate the disability?’ If it comes to your attention that a client has interaction problems that might be associated with a disability, you should bring it up -— not in terms of ‘Are you bipolar or borderline?’ but ‘I see we’re having difficulty with XYZ; is there a better way for me to convey information?’"

"If the client says ‘Yes, I would benefit by your putting this in writing,’ I would probably say, ‘Do you need this in writing because you have a significant memory problem?’" says Joondeph. "If the client says yes, it could be a situation where you shouldn’t charge for it. Whereas if he just likes things in writing, you can charge."

What if the client is just being difficult?
"If he says, ‘No, I just don’t think you’re giving me good advice,’ or doesn’t want anything, now you’re in ethics land, whether you can effectively represent the client," Joondeph says. "If you have a strong-headed client who just won’t play ball with you, you’re in the same situation. You have ethical obligations if you think a client is making a bad decision. You’re not supposed to let him jump off a cliff. It may be a situation where you need to withdraw and refer, not an ADA issue. The ADA is only there to encourage you to serve someone within the bounds of what you do. If you can’t, you can’t."

Joondeph says that clients with personality disorders, like antisocial or borderline disorders, can be the most difficult to serve.

"I remember some of my clients from my PD days," he says. "I would try to be very factually oriented, not get into any emotional stuff, not take the bait of ‘You’re selling me down the river.’ I’d say, ‘This is what I can do, not do.’ I said that to a client once. There was a long silence and then he said, ‘Where’s the sympathy?’"

Sometimes, sympathy is called for…

Gregorio PerezSelsky is one of only a handful of defense attorneys who represents clients in Yamhill County’s Court Coordinated Services Program, where some defendants with mental limitations and/or illnesses can get their criminal charges dismissed if they comply with certain conditions.

"I guess I’m more in tune with people who are mute," says PerezSelsky, who had his vocal chords removed due to cancer several years ago and now speaks through a prosthesis. "But I’ve always been sensitive to people with disabilities. Be patient and try to communicate on a very simple level with them. Have empathy. That’s all anyone needs to get along."

Linda Ziskin, the past chair of the bar’s Disability Law Section who practices Social Security disability appellate law in Lake Oswego, notes that "People who have certain mental impairments don’t want to admit it, or don’t know."

"You’ll see this in other areas of law, particularly consumer and family law and bankruptcy," says Ziskin. "Lots of times people are depressed, but they don’t talk about depression. It manifests itself as not paying bills, not getting out of bed. I wouldn’t have an intake form that asks, ‘Are you mentally ill?’ or anything as insensitive as that. But if you listen to them talk, you may find out things maybe even they didn’t know. The question then is: what is your responsibility? We’re not psychiatric counselors, but we are counselors at law. We may need to steer clients towards some other types of professional help. You have to have sensitivity and intelligence about relating to clients and all of their problems. Some lawyers are really good at this, and some really aren’t. Sometimes, it’s just a matter of style."

Courthouse Access and Use
What should a lawyer think about if his client is going to court?
Theresa Soto, the attorney with cerebral palsy, says that lawyers should start by asking themselves, ‘How does my client get to the courthouse?’"

"For someone with a disability, it’s not really simple," says Soto. "If the lawyer knows, it helps keep him from thinking, ‘Where the heck is my client?’"

For example, she says that in Multnomah County, the Tri-County lift bus used by disabled persons doesn’t drop them off in front of the courthouse.

"I’m petrified of crossing the street," Soto says of her own experience with having a disability. "If I knew a client was riding the bus, I would make sure he had everything he needed or take the time to meet him and walk over to the courthouse with him."

Once a disabled client reaches the courthouse, new perils may await.

"You should call the building manager and ask if the client can get in easily and, if not, what needs to be done?" advises disability lawyer Ziskin. "Most of us don’t have the time and foresight to do that. The people who need help also have responsibility. They’ve been living with this all their lives: they’re generally not shy. It’s the lawyers who are shy."

Multnomah County Circuit Court Judge Janice Wilson, who chaired a statewide task force on access to state courts for persons with disabilities in 2005-06, says that in her experience, lawyers get "extremely little" training on how to deal with clients with disabilities.

"It would be so helpful to the court if lawyers were mindful of the issues their clients have," says Wilson. "An astonishing number of times, I see clients at counsel table having trouble hearing. I’m tuned in because I have a hearing problem myself. I ask them if they’d like an assisted listening device. Their lawyers say, ‘Oh my gosh, I didn’t know.’ A huge percentage of people with hearing problems do lip reading and may not even know they are doing it."

"We don’t consider ourselves as people with disabilities," Wilson says of herself and others with such physical problems, many of them age-related. "We don’t identify with disabled populations. In surveys, if you ask people if they have a disability, they say no. If you ask them if they have a problem hearing, they say yes."

Any parting thoughts on how lawyers can accommodate disabled clients?
"People will say that someone is ‘confined to a wheelchair,’ says Ziskin, who spoke — with quadriplegic attorney Dan Arkin — on a panel on disability before the bar’s House of Delegates meeting in Fall 2006. "But Dan has this incredible wheelchair. He says, ‘This is what gets me out of the house.’ He doesn’t see it as confining, he sees it as liberating him."

"People who are not in wheelchairs look at people in wheelchairs as less able," Ziskin continues. "But in the future, that could be me. If I’m not disabled in some other way, I sure will be by age. It could happen to anyone. We need to conduct ourselves and our business with that in mind."

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin. She notes that Dan Arkin, who was interviewed for this article, made similar comments at the bar event at which he spoke.

© 2008 Janine Robben


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