Dealing with an adversarial lawyer? YOU HAVE ADA RIGHTS!

This will turn the legal industry upside down.

Absent intent or authority as legal advice.

So, this recently dawned upon me, and I’ve started sending out letters to client’s opposing counsel. When you’re in an adversarial matter, and there is a lawyer involved on the opposing side, the goods and services of law offices are subject to Title III of the ADA. This means, once you invoke the ADA to the opposing attorney, a different set of rules come into play. Things like non-discrimination, and things like “It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of any right granted or protected by this chapter” (The ADA).

Divorce? Your ex’s attorney has to give you ADA rights*

Custody? Opposing lawyer has to give you ADA rights*

Lawsuit? Opposing lawyer has to give you ADA rights*

Business deal? Opposing lawyer has to give you ADA rights*

Notice that little asterisk on the four lines above? That’s because they don’t have to give you Jack Shit concerning ADA rights if you don’t ASK for those rights. Oh, they have to make their office wheelchair accessible unless they’re in a historic, grandfathered building, but practically, you have to ask for ADA rights to get them, in most every situation - this one included.

Title III of the ADA deals with public accommodations. Public places of business.

For lawyers, this is “the office of a lawyer”. Well, hell, that’s a broad term and the ADA intends broad usage and expansive coverage to the maximum extent permitted, according to the ADA Amendments Act’s purpose statement.

Just what IS the office of a lawyer, you might ask? Well, that’s a very malleable and fluid term. The American Bar Association (ABA) model rules of professional conduct, in the preamble, says in part (used under fair use):

”Preamble:  A Lawyer's Responsibilities

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

[3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.”

As you can see, a lawyer is “an officer of the legal system.” That’s one office.

Then, and this shocked me how easily they set themselves up on this, but most lawyers will have a professional corporation or limited liability partnership and what do they call it? “The Law Office of [fill in the blank]”.

Then, and hear me out on this, their ENTIRE practice is built up on one thing, as Fred Rodell pointed out in his book “Woe unto you lawyers”. WORDS. Their entire practice is just words. That’s all. Words on paper, words on a computer screen, words orally delivered, but at the end of the day, lawyers are word mages and that’s their practice, spinning words that bring about results they want. Either they want a jury to believe them, a judge, a client, or an adverse party.

The ABA paints the lawyer’s responsibilities as including “dealings with others” and “reporting to others”. This responsibility layout of a lawyer is NOT just for clients.

So, if you have any misconception that the ADA rights are only available for clients, that’s errant.

28 CFR §§ 36.302 Modifications in policies, practices, or procedures.

(a) General. “A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.”

So, facilities relates to the building they are in. But, the rest of these qualifiers, unlike your local mechanic shop that has to work on cars on their property, or unlike Lucy’s dress shop that sells their goods and services inside their doors, a lawyer sends their goods and services out into the world, and they invite you to their goods and services through the delivery of a demand letter, court document with their “law office” signature on it, divorce papers, or some other written claim with words on it.

And what does the letterhead look like? Well, at the top, you’ll see “LAW OFFICE OF BILL SMITH, ESQ.”

The “Goods & Services” of LAW OFFICE OF BILLY SMITH, ESQ.

There’s his office, sitting right in your hand, in the form of a letter, with words that you are supposed to interpret. These words have “latent ambiguity” (Thanks, Ed), and for someone that doesn’t understand the language of lawyers, whether it is legalese, or just craftily worded ambiguous soup, if you have physical or mental impairment, say - you have problems determining context like I do - or you have a learning disability, or you dissociate when you get intimidating mail, or any sort of “physical or mental impairment” that “substantially limits one or more major life activities”, (sleep, concentration, thinking, learning [learning what the fuck they really mean] communicating, interacting with others, caring for oneself, and more) then you qualify to ask for ADA rights from the lawyer that is approaching you with their “goods and services”.

Now get this…

I advocate for clients with disabilities. I’ve seen clients have EXTREME difficulty getting their lawyer to honor their ADA rights. If clients meet opposition to something that is CLEARLY laid out in the ADA (They must offer equal access, etc), then you know that, as an adverse party, it’s really going to fuck up their sandbox for you to invoke the ADA.

About dealings with others.

You’ll notice in the ABA model rules preamble, that “others” are mentioned twice, and inferred in the “third-party neutral” the lawyer is “nonrepresentational” but is still LAW OFFICE OF BILLY SMITH, ESQ, and is a public accommodation under Title III of the ADA. Imagine a “third-party neutral” lawyer telling someone that they won’t help resolve a dispute because they’re deaf. Would that be discriminatory on the basis of disability? What if the deaf person is not even a “client”? (Which would be the scenario in this setting) YES, that would be discriminatory on the basis of disability.

What about the ABA model rules that require honest business dealings with others? Are “others” clients in this setting? NO. The sentence actually includes “clients” and “others” in separated capacities: “As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”

It is clear, that the “goods and services” of lawyers are issued in “words”. YOU, as a disabled individual, have the right to ask for the static, clear, unambiguous, permanent, and full meaning of those words, ONE AT A TIME, if you need this to come to a place of mitigated disability (where you can think, learn, concentrate, interact with others (such as the lawyer or your ex), in a way that is mitigated, and not so substantially limited.

About exceptions to the duty to accommodate…

There are 4 exceptions (defenses) to not accommodating or to discrimination against a disabled individual.

1. Qualification - If the lawyer is sending you their goods and services, they’re going to have a hard time claiming you’re not qualified to access their goods and services.

2. Fundamental alteration - If accommodating you fundamentally alters the nature of their goods and services, then they don’t have to do it. You may say “they don’t fundamentally offer static, clear, unambiguous, permanent, and full meaning of the words they use to non-clients.” And, you’d be right. But WHY are they not offering the meanings of these words to non-clients? Well, because the ADA has not been invoked. There’s no duty on a lawyer, even for their own client, to accommodate what is not readily apparent or readily observable. If someone walked in with a white cane and dark glasses, or rolled in with a wheelchair, or was doing sign language, these would be common observable signs that someone has a disability, then there would be a reasonable onus on the public accommodation to have either already made things accessible, or offer them if they see a barrier encountered. (This is not absolute, but the deniability piece, of not knowing, and thus not having a duty, THAT is absolute as to what’s occurred in ADA cases.)
   
   But if a disabled client asked a lawyer what a word or term meant because their disability limited them, a lawyer would, in the regular course of business, give the meaning to a client - no sweat. The ADA says that that same equal access is available to the public.
   
   And while this part is not in the ADA, it seems self-apparent that IF the lawyer is approaching a disabled person with an offer to engage in the goods and services (business) that the lawyer is pursuing, especially in a coercive way (as in the letter above: “Please engage in these goods and services we have offered you, or we will offer more goods and services to you in a more threatening manner”, then they are specifically using the prohibited acts found in 42 USC §12203(b) - coercion, intimidation, and threats, to offer their goods and services, and once the ADA is invoked, there is a change of duty, according to the ADA.
   
   While someone is “exercising and enjoying” rights under the ADA, it is unlawful to coerce, intimidate, threaten or interfere with that individual while in the exercise and enjoyment, which I always state in writing as “perpetual from here forward…”
   
   Final thought on this defense is that since lawyers regularly dispense meanings to words on a daily basis, asking for the meanings to those words as a disabled individual does NOT trigger the availability of a fundamental alteration defense to deny this as an accommodation.
   
   Fun fact : When I was suing the city of Portland, OR for ADA violations (under Title II), they sent me the first discovery and I asked for ADA modifications of their services, and they tried to balk and deny me. My next step was to ask them for the static, clear, unambiguous, permanent, and full meaning of those words, ONE AT A TIME, and while I didn’t get the opportunity to actually take this step, there were markers on my patterns that would have caused them to know that I was going to attempt to drill down on clarity. That’s what the entire suit was about. So, they settled with me at this very crossroad.
   

3. Undue Burden - A party claiming this has to prove it. I’m not going to spell out how to do that, although it is damnear impossible. In the matter of an attorney trying to claim it to get out of their obligation, they’d be crafty, but this would be like claiming that taking on clients with communication disabilities is an undue burden. It’s not going to fly.
   

4. Direct Threat - There are 7 criteria to this defense, and this too, would be damnear impossible for the lawyer to claim as a defense to not accommodating or discrimination. Further, it’s not a logical choice of defense for this, because they would have to say that you’re a direct threat to the health and safety of yourself or others, and as mentioned, there are a few hurdles to jump through, one of which would be an “individualized assessment”, which would require some form of consent from you.
   

The nexus (connection) between the law office and the papers that issue from the law office is undeniable, and clearly established. When a lawyer offers you their goods and services, if you have (and this is a very broad availability) a physical or mental impairment that substantially limits your major life activities of either learning, reading, concentrating, thinking, writing, communicating, interacting with others, or caring for yourself, then you should ask for ADA accommodations.

What are some examples of what a physical or mental impairment that substantially limits one of the above major life activities look like?
~ Past trauma with attorneys that causes you to dissociate. My mentor wrote an entire book on the term “Legal Abuse Syndrome” (Look it up).

Just ask first, (“Will you give me ADA accommodations as a qualified individual with disabilities under Title III of the ADA?”) to let them deny you.

And let the long awaited change to the dynamics of the machine commence.

REVISED:

There. I fixed it.

P.D., JAY V SHORE