Los Angeles Lawyer October 2008 - Gray Plant Mooty

the ADA 17 so long as they meet the definition
of disability (a physical or mental impairment
that limits one or more of the major life
activities). If a person has a mental health
impairment that affects a major life activity,
he or she is entitled to protection under the
ADA. Even if a person’s mental health issue
is not protected under the ADA, the condition
may nonetheless influence the quality of representation.
If a client discloses a mental health disability,
he or she may be trying to convey a
need. It is important to follow up by asking
whether the client needs an accommodation.
For example, if an individual has a mental
health disability that causes severe emotional
responses, the attorney should spend extra
time discussing the emotional aspects of representation
or litigation.
Overall, when representing a client with
a disability, the key to effective representation
is communication. Knowing how the disability
can affect the representation will help
build trust and rapport. It is as simple as
professionally asking an individual with a
disability to illustrate appropriate accommodations.
In addition, it can be helpful to
be in the practice of using person-first language.
Proactive steps like calling ahead or
ensuring that there are no barriers to physical
access can ensure that an individual with
a disability is comfortable.
Know that some disabilities, such as learning
and mental health, can be invisible but
nevertheless influence representation.
Although accommodations may not be
required under the ADA, accommodations
may nonetheless be necessary to foster a successful
attorney-client relationship. An individual
with a disability should receive the
same quality of representation as an individual
without one.
■
1 The Americans with Disabilities Act of 1990, 42
U.S.C. §§12101 et seq.
2 See, e.g., http://www.disabilityisnatural.com and
http://www.csun.edu/~ffrc/person1st.html.
3 28 C.F.R. §36.301(c).
4
42 U.S.C. §§12101 et seq.
5 42 U.S.C. §12181(7)(F).
6
42 U.S.C. §12182.
7 42 U.S.C. §12183.
8
A lease may contain an express agreement regarding
the parties’ responsibility for ADA compliance. See
Botosan v. Fitzhugh, 13 F. Supp. 2d 1047, 1053-55
(S.D. Cal. 1998) for a discussion of landlord-tenant
responsibility.
9 42 U.S.C. §12181(9).
10
Id.
11 28 C.F.R. §36.3059(a)(3).
12
See CAL. RULES OF PROF’L CONDUCT R. 3-110 (duty
to act competently).
13
See ADA Business Brief: Service Animals, at
http://www.ada.gov/svcanimb.htm.
14
28 C.F.R. §35.160.
15 CAL. RULES OF PROF’L CONDUCT R. 3-110.
16
47 U.S.C. §225(b).
17
42 U.S.C. §12102(2)(A).
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