Fall 2013: How Do I Best Represent a Client With Disabilities?

By Brian McLaughlin, Jr., Esq. & Wendy O. Hickey, Esq.

Communicating with clients from all different walks of life can be exceptionally challenging and rewarding, especially if you have never been exposed to a client from that background. Often, when assisting disabled clients the differences from a typical attorney-client experience become apparent almost from the beginning of the representation. As with many topics at law, effectively helping a disabled client is more a matter of experience than deep insight. This article will share some of our experiences and practical tips in our assistance of clients with certain physical disabilities with the hope of sharing some common differences that can occur in your representation.

The first place you will generally have to adapt your approach is at the start of your representation for your first in person client interview. However, the initial phone screening of your client is often when you will be best served to begin thinking about some of the differences and challenges of the representation which lie ahead.  If the individual discloses a disability and mentions any assistants, mail openers, etc. we recommend following up with further questions to determine the nature and extent of the disability. You should explain your usual intake process and inquire if there is anything you can do differently to make your representation a success.

After you have ascertained what your client’s disability is, consider doing some background reading on their disability before you meet with them[1]. This background research can help you counsel your clients more effectively. We have provided several online resources below that can assist you in your research.[2] As with most elements of your practice, effective preparation is 99% of successfully starting the Attorney-client relationship. Even a cursory reading of a Wikipedia article on the disability can be helpful in setting up your initial interview.

Background research will also allow you to start thinking about how to adapt your standard approach to better serve your clients. For example, when working on a divorce case and discussing the division of assets a common metaphor for purposes of educating clients is, “dividing up the pie.” However, when representing an individual who is visually impaired this metaphor is not helpful: if your client has never seen a pie, how could they visualize dividing it up?

Another related issue that will be greatly helped by prior knowledge of your client’s disability is how they consume information. For example, your client may not have the full use of their hands necessitating speaking assistive language software or a screen reader. This will require you to give them their documents in an accessible manner, usually as a scanned PDF. Signatures can also require special consideration; people with physical limitation will often have either a stamp or someone to sign for them.  Depending on your client’s disability, you may need to adjust the manner in which you communicate with your client.  For example, if your client cannot speak but has use of his/her hands, try using Instant Messenger to have conversations rather than the telephone.  If your client needs to testify in deposition or in court, you can make use of screen reading software which will “speak” what your client types.  However, testimony with this software is a skill which needs to be practiced.  Once your client hits the enter key, s/he cannot make the computer stop speaking until the answer if finished which makes for some potentially dicey scenarios never mind annoying opposing counsel if they try to raise an objection.

Getting back to the beginning, after hopefully familiarizing yourself with your client and their situation, you should begin to think about how your client’s disability might affect your first in person interview. One of the most common and most important issues that can crop up when you are setting up your first meeting is accessibility[3].  When setting up you first meeting have a candid conversation about what they will need by way of accommodations. Make sure that the location of your meeting is accessible to meet your client’s needs. This may become a new challenge if your office space is not handicapped accessible, and if you are not used to meeting clients outside of your office.

While we are accustomed to doing most of our work in the office, there is no real requirement aside from convention that we do so. All that is necessary is a quiet and private place so that confidentiality and your attorney-client relationship can be easily established. This could be accomplished many ways - using a neighbor’s conference room, setting up a meeting in a different public place, or even making house calls. After setting up your meeting in a suitable place, it’s time to meet your client.  Depending on your client’s limitations, you may find they have an array of assistants doing everything from opening their mail to using the phone to set up their appointments to driving them to appointments to doing their household bookkeeping and preparing their taxes.  You should get your client’s permission to speak with their assistants as well.  In some cases they will be better acquainted with your client’s finances or their flow of correspondence than your client.   

            Some of the realities of living as a disabled person are quite sobering. Some of those realities include an increased chance of domestic violence and lack of financial education. According to the 2010 Census, nearly 28% of the disabled population lives in poverty, defined as less than approximately eleven thousand dollars annually. Disabled men and women have a lower median income of roughly six thousand dollars compared to the general population[4]. Being flexible in your payment arrangements can also be an important factor. Like many populations with less financial resources LAR and flat fee agreements both offer increased financial flexibility than a standard retainer. [5] The availability of representation to the disabled population is especially important when viewed in contrast to the potential risk of domestic violence and coercion that can befall a disabled person.

The issue of domestic violence amongst individuals with disabilities is largely due to power dynamics and poverty. It is perhaps best summed up by the following quote from, Violence and Abuse Against People with Disabilities: Experiences, Barriers, and Prevention Strategies.

            "You finally say, ‘Okay this is it. I’m going to do whatever I can to change this marriage.’ And by the way, can you bring my scooter to me so I can leave you?”[6]

 The domestic violence amongst the disabled population is different in two respects from the already serious situation that confronts a nondisabled victim.  A caregiver can disable your equipment not allowing one to move or a person with a disability may have a greater fear of backlash by the caregiver.  “Rates of physical and sexual abuse are approximately twice those typically found for nondisabled women.”[7] As their attorney you can advise your client of the appropriate steps to take if this occurs. Care givers can be both significant others or paid personal assistants. Naturally, if the caregiver is a spouse the power dynamic can play out during the divorce in a variety of ways.  The power could be even greater if the caregiver spouse is also a physician and the disabled spouse has a debilitating disease such as ALS.  Imagine the terror if the caregiver suggests to the disabled spouse that s/he commit suicide rather than linger through the painful disease.  Often disabled people can feel dependent and non-autonomous.[8] This can bleed over into many aspects of the divorce, especially finances and acquiring new housing.  The more you know about the dynamics of your client’s situation, the better you will be able to help your client create a safe exit plan.

This brings us to the final point - financial literacy and housing of a disabled client. Oftentimes, due to a variety of factors, a disabled person may be less financially literate than your usual population of clients. This often starts at a young age because of the difficulty locating summer jobs and unfortunately can persist into adulthood.  A 2010 study concluded that more than 50% of the available income of the disabled person is being used to pay for housing. Knowing these troubling statistics will make you a more effective advocate for your clients.

Additionally, access to affordable housing can be extremely difficult for a disabled person.[9] As of 2010, as a national average a person receiving SSI (which is often primary source of income for disabled people) needed to pay 112 percent of their monthly income to rent a modest one bedroom unit.[10] Issues related to housing can arise during a divorce when one party almost invariably has to move out of the marital home. It is therefore important to attempt to educate your client about financial independence; especially in the context of a divorce, where it is often the non-disabled spouse who has done the majority of the household finances.  The financial literacy program offered by Easter Seals is a great resource.[11]

Easter Seals and the Massachusetts Rehabilitation Commission offer numerous programs to help the disabled financially: MRC offers an assistive technology program that is administered locally by the MA Easter Seals, the United Cerebral Palsy of Berkshire County and the University of  MA-Dartmouth Center for Rehabilitation Engineering [12]. This program was first started in 1999 with the goal of increasing access to disabled members within the community. If you have a disabled client who needs devices we would recommend seeing if they are eligible for any of the programs offered by Easter Seals.

Easter Seals also offers an assistive technology loan program which provides affordable financing under a very broad range of potential items. For example, the assistive technology loan program can even cover items like sports chairs for basketball.  Interest rates are usually superior to a bank loan, and repayment is purposefully stretched over the estimated lifetime of the assistive technology to minimize the financial burden[13].  MRC also offers a Home Loan Modification program for the disabled[14].  This allows disabled individuals to acquire the financing needed to make their living space more accessible.  Finally, we would be incomplete if we did not mention massmatch.org.  In an attempt to streamline and navigate the complicated network of various government and nongovernmental assistive programs, massmatch.org was created to aggregate many of these resources into one location.  This creates a very navigable “one-stop shopping” experience for people trying to locate applicable assistive programs.  The disability law center can also be an invaluable resource as they offer monthly seminars on housing law and other related topics for people with disabilities.

It is hoped this article has provided some helpful practical tips as well as resources when you have your first disabled client. Knowing a little bit more about the background of your clients will make you a more effective advocate.  It is important to remember that disabilities vary greatly and can appear in many different forms.  This article was intended to highlight some those general issues and is not all-encompassing. 

Furthermore, representing disabled clients has been an extraordinarily rewarding experience and we hope this article helps you navigate some of the more common issues that may arise during such representation. We also hope that these resources will help you succeed in having a productive and beneficial attorney client relationship.

Brian McLaughlin Jr. is the owner and sole proprietor of Brian McLaughlin LLC.  His practice focuses heavily on family law, including divorce, paternity and child support. In addition to family law, Mr. McLaughlin regularly takes unemployment benefits and special needs education cases. Mr. McLaughlin is committed to pro bono work and has successfully resolved cases for both the Volunteer Lawyers Project and Women’s Bar Foundation.  He believes in the importance for quality legal representation for all and regularly serves as the Volunteer Lawyer of the Day at the Suffolk Probate and Family Court. Mr. McLaughlin currently serves on the Family Law and Pro Bono Steering Committees at the Boston Bar Association and holds the position of Civil Rights Liaison to the New Lawyers Section.

Brian is a graduate of Boston College, magna cum laude and Boston College Law School. His article Not Your Average First Year appeared in the July 2011 edition of the Massachusetts Lawyers Journal.

Wendy is a graduate of Suffolk University School of Law (2003 cum laude), Suffolk University (1998 cum laude) and Fisher College (1994).  She has been working at Nissenbaum Law Offices since 1994 first as a paralegal and, since 2003, as an associate handling all aspects of family law cases. Wendy is admitted to practice in Massachusetts (2003), the U.S. District Court (Massachusetts 2004), the U.S. Court of Appeals (1st Circuit 2007), and the U.S. Supreme Court (2011).

Wendy co-authored an article What You Need To Know About Vaughan Affidavits” which was published in Massachusetts Lawyers Weekly, October 27, 2006 and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter.   

Wendy was named a Rising Star by Boston Magazine’s publication of Super Lawyers in 2011.

[12] http://www.mass.gov/eohhs/consumer/disability-services/assistive-tech/assistive-technology.html

[13] http://www.mass.gov/eohhs/consumer/disability-services/assistive-tech/atl-program.html

[14] http://www.mass.gov/eohhs/consumer/disability-services/housing-disability/home-mod-loan/