Los Angeles Lawyer October 2008 - Gray Plant Mooty

practice tips
BY MELISSA CANALES
Effective Representation of Clients with Disabilities
RICHARD EWING
EFFECTIVELY REPRESENTING A CLIENT WITH A DISABILITY requires
more than merely complying with the Americans with Disabilities Act. 1
A lawyer must conform to the requirements of the ADA, but there
are also basic sensitivities regarding a client’s disability that must be
followed in order to build and maintain an attorney-client relationship
that is successful. The importance of practicing disability sensitivity
and understanding cannot be stressed enough. Feeling comfortable
and confident with a client is imperative to building trust and
rapport.
Many disabilities, such as physical disabilities, are evident on
sight. However, other disabilities, such as learning and mental health
disorders, are not always apparent. Nonobvious impairments are not
always protected under the ADA but may still affect a lawyer’s ability
to communicate effectively with a client. Whether a disability is
obvious or nonobvious, it is unproductive if an attorney is walking
on eggshells and fearful of saying something inappropriate or offensive.
Will an inappropriate reference to the client’s disability slip
out? If something like that does occur, will it be offensive?
Attorneys can address these questions with a sense of perspective.
In most cases, any anxiety experienced is the attorney’s issue and not
the client’s. Most people with disabilities have experienced awkward
interactions. The experience will not be new to them; it may only
be new to the attorney. If an attorney is preoccupied by his or her own
insecurities about being politically correct or proper, he or she will
be a less effective counselor and adviser. Under no circumstances should
an attorney’s fear or awkwardness of how to treat an individual
with a disability affect the quality of representation.
Fortunately, because of the ample information available on the
Internet, it generally only takes a few minutes to gain understanding
about a particular disability. By learning and practicing a few techniques,
one can learn to avoid feeling anxious or ignorant. One simple
technique is person-first language. Because it is offensive to some
people to label by disability, it is appropriate to refer to the person
first and the disability second. For example, the attorney could say
“individual with a disability” rather than “disabled person.” The use
of person-first language is easy and conveys a sense of understanding
and sensitivity.
Likewise, unless discussing parking lots or bathrooms, the term
“handicapped” is no longer an appropriate term. “Crippled” and
“confined to a wheelchair” are also inappropriate and may be offensive.
A rule of thumb is to always put the person first and then
describe the disability as a possession of the individual. A few more
examples are a “person with schizophrenia” rather than “schizophrenic,”
and an “individual with autism” rather than “autistic.” 2
This type of language requires the use of more words and can sound
awkward or repetitive. However, it is the respectful, appropriate
method of describing a person with a disability. Utilizing person-first
language in court documents, correspondence, and other communications
will demonstrate sensitivity, understanding, and professionalism.
When communicating and referencing a disability, using person-first
language is proper regardless of whether a client has a disability. Any
client’s spouse, close friend, or family member may have a disability.
Another method to build client rapport and trust is by ensuring
a client with a disability has appropriate accommodations. Most individuals
with disabilities do not expect attorneys to be able to read
minds. When in doubt about whether someone needs an accommodation,
it is appropriate to ask. Being polite and listening will further
build rapport. A client may feel uncomfortable asking for an accommodation;
therefore, inquiring to his or her needs prior to meeting
will ease any fear or anxiety.
Some accommodations are obvious, such as employing a sign-language
interpreter for a client with a hearing disability. Other accommodations
are not apparent. For example, a nonobvious accommodation
may include altering the temperature in the meeting room; some
individuals may have discomfort in a cold room because of a medical
condition. An accommodation may include conducting meetings
at the client’s home where temperature will not be an issue. Without
inquiring about needed accommodations, an attorney may find that
a client is constantly avoiding meetings. He or she may misinterpret
the client’s behavior as avoidance, when, in fact, the client was
merely uncomfortable informing the attorney that the air conditioning
prevents in-office meetings. Similarly, by asking if a client
requires an accommodation prior to the first meeting, an attorney can
learn, for example, that a client has concentration and memory dif-
Melissa Canales practices education and special education law with the
Learning Rights Law Center legal services nonprofit organization.
10 Los Angeles Lawyer October 2008