Ethics and Legal Requirements of Representing

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Rachel Arfa
Staff Attorney
Equip for Equality
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The Ethics and Legal
Requirements of Representing
People with Disabilities
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U ALI T
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Rule 1.1 Competence
• A lawyer shall provide competent
representation to a client. Competent
representation requires the legal knowledge,
skill, thoroughness and preparation reasonably
necessary for the representation.
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Comments on
Rule 1.1 Competence
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• Comments state a lawyer does not necessarily
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have to have special training or prior
experience, and can provide adequate
representation in a new field through study or
through association of a lawyer with familiarity
Also applies to lawyer who is appointed as
counsel for an unrepresented person
Comments on
Rule 1.1 Competence
U ALI T
• Maintaining Competence – to maintain the
requisite knowledge and skill,
 a lawyer should keep abreast of changes in
the law and its practice
 engage in continuing study and education
 comply with all continuing legal education
requirements to which the lawyer is subject
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Competence
• Not required that only those who represent
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people with disabilities take disabled clients
Learn what you need to do in order to
represent a client with a disability; find out what
kind of reasonable accommodation the client
needs. Ask your client what he/she needs.
 If deaf, does client need ASL/oral/cued
speech interpreter, real time captioning; how
to best keep in touch, via video relay calls,
email, text, gmail chat, and others.
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Rule 2.1 Advisor
• In representing a client, a lawyer shall exercise
independent professional judgment and render
candid advice. In rendering advice, a lawyer
may refer not only to law but to other
considerations such as moral, economic, social
and political factors that may be relevant to the
client’s situation.
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Rule 2.1 Comments
• A client is entitled to straightforward advice
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expressing the lawyer’s honest advice,
including bad facts.
Technical advice is not helpful, especially to
clients not familiar with legal terminology
Consider moral, economic, social and political
factors
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2.1 Comments
• Consider social factors
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Example- representing deaf and hard of hearing
clients
Wide range of identity among deaf and hard of
hearing community
Some deaf people communicate by speaking and
lipreading, while others use American Sign
Language – which can result in distinct life
experiences and attitudes
2.1 Comments Social Factors
continued
U ALI T
• Be aware of cultural differences
• Societal factor: many deaf persons graduate
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from high school reading at a fourth grade
reading level
Will need assistance in breaking down legal
terminology
Ex. - Be sure not to simply read settlement
agreement – language may be too advanced.
Instead, break down what it means.
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Rule 1.6 Confidentiality
• “A lawyer shall not reveal information relating to the
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representation of a client unless the client gives
informed consent…”
Discuss with client before revealing information
Frequently, clients with disabilities have information
about them shared without consent, such as to a family
member
Hidden disabilities: clients with hidden disabilities may
want to keep their disability confidential
Others may want to keep disability related information
confidential, even if disability is obvious
Rule 1.4 Communication:
Obtaining Informed Consent
U ALI T
• “A lawyer shall promptly inform the client of any
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decision or circumstance with respect to which the
client’s informed consent…is required…”
Ex: Explain important provisions in legal documents
If a client has minimal language, use appropriate
accommodations and review the agreement to ensure
that you have informed consent
If client has visual impairment, provide document in
accessible format, read document
Rule 5.3 Responsibilities
Regarding Non Lawyer Assistants
U ALI T
• With respect to a nonlawyer employed or retained
by or associated with a lawyer:
(a)A…lawyer…shall make reasonable efforts to
ensure…that the person’s conduct is compatible
with the professional obligations of the lawyer;
(b)A lawyer having direct supervisory authority over
the nonlawyer shall make reasonable efforts to
ensure that the person’s conduct is compatible
with the professional obligations of the lawyer
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Rule 5.3 Comments
• Comments define assistants as: secretaries,
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investigators, law student interns,
paraprofessionals
Assistants, whether employees or independent
contractors act for the lawyer in rendition of the
lawyer’s professional services
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How to comply with Rule 5.3
• Train your support staff on:
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How to communicate with people with disabilities.
Explain obligations to be accessible under the
Americans with Disabilities Act
How to accept and conduct video relay calls and
TTY calls from deaf and hard of hearing clients. It is
illegal to say “we don’t provide sign language
interpreters.”
Provide forms in alternative format for blind and
visually impaired clients, offer to assist in completing
form
U ALI T
Obligation under ADA when
representing a client with a disability
• Title III of the ADA provides that a public accommodation
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“…shall take steps 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…”
Attorneys are considered a public accommodation and
must provide accommodations. 42 U.S.C.§12181(7)(F)
Public accommodations “…shall furnish appropriate
auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities.”
28 C.F.R. §36.303 (c)(1)
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DOJ Complaint filed against Attorney
for not providing accommodations
• Attorney represented deaf woman, did not use
sign language interpreter when meeting with her.
• Divorce case, where wife also experienced
domestic violence in marriage
• Attorney-client meetings: Deaf client did not
understand what was discussed
• Attorney at times used client’s sister (who was also
not a qualified interpreter) to interpret
http://www.ada.gov/tirone.htm
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DOJ Complaint filed against Attorney
for not providing accommodations
• To communicate, attorney also used pen and
paper, fax, lipreading and the relay service when
communicating by phone. These methods took
longer than if a qualified sign language interpreter
had been provided, which resulted in higher
attorneys fees to client.
• DOJ investigation found that attorney failed to
provide client with effective communication.
• Attorney was ordered to pay a fine and waive all
attorneys fees owed.
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• Attorneys have an obligation to comply with
state and local anti-discrimination laws in
representing clients with disabilities
 Illinois Human Rights Act
 Cook County Human Rights Ordinance
 Chicago Human Rights Ordinance
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Illinois Anti-Discrimination Laws
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U ALI T
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Questions?
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