Hope everybody had a great Labor Day weekend. Today’s blog entry discusses the professional obligations associated with a person with a disability in litigation. I can’t tell you how often I get a call from a person, generally a couple of times a week, talking about how the court system is not accommodating their disability. Sometimes those calls include questions about whether their attorneys properly approached the court with respect to getting their disabilities accommodated. So, I thought I would talk about some of the issues that arise. As is typical with my blog entries, I have divided into categories: professionalism issues and takeaways. The reader is free to focus on either or both of the categories.

I

Professionalism Issues

  1. If a person with a disability seeks accommodations from the court, the first step would be to go through the court’s ADA/504 coordinator. However, sometimes the courts in an effort to maximize judicial immunity, have a judge acting in that role. So, if a judge denies a reasonable accommodation request, you definitely want to go on the record and object to that. Also, if you are going to appeal that decision, make sure everything is in place for that appeal to be properly heard. Finally, to maximize your chances of going after the judge for injunctive relief for constitutional violations, i.e. § 1983 (claims of procedural due process and/or equal protection), file a motion for declaratory relief to declare just what is the court’s obligations to accommodate the litigant per the ADA.
  2. If you are representing a person with a disability in litigation and you do not reasonably accommodate their disability with respect to your services or you do not advocate that your client’s disability be reasonably accommodated by the court, you may be facing legal malpractice claims, ethical claims, and even, if a criminal case, a claim of ineffective assistance of counsel (there are a group of people working on the proposition that the ADA requires a civil Gideon for persons with disabilities, but the courts are not having it yet).
  3. Legal malpractice exposure (litigation matter): the legal malpractice exposure comes from the elements of proving a legal malpractice claim. For a litigation matter, it varies from State to State, but generally it goes something like this: attorney owed the plaintiff a duty of due care arising from the attorney-client relationship; attorney breached that duty; and as a proximate result, the client suffered injury. An injury is a pecuniary injury to an intangible property interest caused by the lawyer’s negligent act or omission. Union Planters Bank, N. A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 342 (fifth district 2010). Causation means means showing both that but for the negligence of the attorney, the outcome of the case would have been different (cause in fact), and foreseeability (legal causation, oftentimes also called proximate cause, mistakenly so in my opinion). Since the ADA has so many moving parts, showing that an error of the attorney would have led to a different result can be very difficult. Even so, I can see two areas where such a legal malpractice claim using the litigation elements may be viable vis-à-vis the ADA. They are: judicial estoppel, which I discussed in this blog entry, and a plaintiff attorney alleging that the major life activity being substantially limited is working. The major life activity of working is very difficult to prove because it means showing that the person cannot do a broad class of jobs (see this blog entry for example), and that can be very difficult to show. Relying on working as the major life activity is simply silly because with the amendments to the ADA, it is now much easier to show a substantial limitation on a major life activity, whether it be a life activity or a bodily function.
  4. Legal malpractice exposure (transactional matter but could also apply to litigation). For transactional matters, proving up a legal malpractice claim means showing what was described in paragraph 3 above, but causation with respect to cause in fact is a bit different. In a transactional matter, cause in fact, or actual cause, means had the undisclosed risk been known, he or she would not of accepted the risk and consented to the recommended course of action. Id. at 344. So, the reason this might be important in the litigation context is that if the person cannot follow the proceedings because of a lack of reasonable accommodations for their disability, how could they possibly discuss with their attorney the options that arise during the course of those proceedings? The two areas of malpractice that could be impacted by the transactional matter elements in addition to what was just discussed are: indemnification agreements when they are not phrased as reimbursement agreements; and where a defense attorney insists on a full return to work.
  5. Recently, the American Bar Association House of delegates passed Resolution 109 saying that it was unethical for an attorney to discriminate based upon a protected characteristic, including a disability. The phrasing of the rule with respect to what is discrimination is rather funny, but from reading the comments, it would seem that the intent of the rule would extend to disability discrimination, which can go beyond verbal or physical conduct. Interestingly enough, it is not a violation of this rule where a trial judge finds that peremptory challenges were exercised in a discriminatory manner. So, failure of an attorney to comply with the ADA, excluding the impermissible use of peremptory challenges, may lead to an ethical violation, assuming the various States adopt this rule. In a funny sort of way, the exclusion of peremptory challenges from the rule is an admission that they are used for discriminatory purposes, but that is another story…
  6. If an attorney is representing someone in a criminal matter and they do not advocate for reasonable accommodations/modifications for the client, they may be hit with a viable ineffective assistance of counsel claim per this case.

II

Takeaways:

  1. If you are a pro se litigant with a disability or are representing a person with a disability in court and the ADA/504 coordinator has proven to be of no help or the judge does his or her own thing, all of which results in a lack of reasonable modifications, consider filing a motion for declaratory relief to declare what accommodations/modifications are reasonable per the ADA. Doing it this way, preserves a 1983 action against the judge in addition to creating a record of disability discrimination in violation of the ADA. You might also want to take a look at this blog entry as well.
  2. If you are an SSDI attorney, make sure you advise your client of the risk of judicial estoppel with respect to future ADA claims.
  3. If you are a defense attorney or an in-house attorney, make sure you are not insisting on a 100% return to work.
  4. If you are doing transactional work and draft indemnity agreements with respect to ADA responsibilities, make sure the agreement is phrased in terms of reimbursement and not indemnification.
  5. If you are a plaintiff attorney, there is almost no reason why working should be alleged as the major life activity that is substantially limited. You are better off finding another major life activity as surely one exists.
  6. If you are representing someone with a disability in court, be aggressive in finding out what that person with a disability needs so as to be able to have meaningful access to the courts. Also, don’t forget about the effective communication rule. Failure to do this might result in legal malpractice and if a criminal case, result in a claim of ineffective assistance of counsel.
  7. Many States have a duty of competence. If we have learned anything from the 253 blog entries here on understanding the ADA, the ADA is incredibly complex. If you’re at all feeling out of your element with respect to an ADA case, get someone involved who can help with that.

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