By Jan Pudlow
On billboards and in the Yellow Pages, an attorney advertises a free consultation. But when a deaf person comes knocking, all of a sudden that attorney is not willing to meet.
“We are hearing from the deaf and hard of hearing that they are having a hard time securing representation. Attorneys don’t know their obligation,” said Sharon Caserta, a lawyer at the Deaf/Hard of Hearing Legal Advocacy Program at Jacksonville Area Legal Aid.
When deaf clients find lawyers, they report that “when they asserted their right to effective communication, some Florida attorneys threatened to withdraw from their case, yelled at the client, or referred to them as stubborn or uncooperative,” according to Caserta.
And a lot of well-intentioned lawyers don’t know the culture of the deaf community and communication is a barrier.
No more excuses.
Caserta has crafted a 30-page handbook for Florida attorneys: Providing Effective Communication for Clients who are Deaf, Hard of Hearing, or Deaf/Blind.
“I had originally designed it to talk about an attorney’s obligation,” said Caserta, a certified legal sign language interpreter.
“I started writing it and, with all the inquiries I got, I thought: let’s get a whole comprehensive version so Florida Bar members can use it and answer all their questions, and we’ll update it as we need to.”
The handbook is “dedicated to every deaf, hard of hearing, and deaf/blind citizen who fights daily with pride, determination, and grace as to their right for equitable treatment.”
Hugh Cotney, a Jacksonville lawyer and Florida Bar representative for the Legal System Accountability Task Force, sings Caserta’s praises.
“This manual is something The Florida Bar has needed for the over 30 years I’ve practiced,” Cotney said. “I don’t use this term very often, but Sharon is awesome and a true warrior for the deaf and hard of hearing. She has taken the ball and run with it, when we fumbled on the 5-yard line.”
The handbook clearly points out that private attorneys do have obligations under the Americans with Disabilities Act that spells out that “no individual shall be discriminated against on the basis of disability,” as well as under Rule 4-8.4 of the Florida Rules of Professional Conduct, that exposes lawyers to Bar complaints if they refuse to represent a client based on hearing loss or refuse to accommodate such clients.
“The ADA law was passed 18 years ago. It’s time for us as attorneys to do some personal inventory on compliance,” Caserta said.
“There are not a lot of resources for people to use in the state. Because of my interpreting background, I can explain as an attorney and an interpreter. I want to help my colleagues. And I want the deaf and hard of hearing and deaf/blind to be represented.”
Caserta said with a laugh: “Read this handbook or read a summons.”
While she doesn’t want to sound threatening, she acknowledges her office is “sending notices to attorneys who violate the ADA and is prepared to litigate against attorneys who are not in compliance.”
Rather, she stresses a helpful tone to take the mystery out of representing such clients.
“Our goal is to educate and give the tools necessary,” Caserta said.
For example, one common myth believed by Florida Bar members, Caserta said, is that the deaf or hard-of-hearing client must pay for the interpreter or auxiliary aid needed to meet with an attorney.
“Just as an attorney would not charge a client who uses a wheelchair a fee to use the ramp to the building, or require them to bring their own ramp, they cannot charge a deaf client for interpreter services or require deaf clients ‘to bring their own,’” Caserta writes in the handbook.
She warns that attorneys who use deaf clients’ family members or companions to serve as interpreters, rather than hiring certified professionals, “do so at their own peril.”
Caserta’s advice delves not only into an attorney’s legal and professional obligations, but offers an array of practical advice she has learned from years working with deaf people — such as understanding that many deaf people who use American Sign Language nod their head.
“This head nod is commonly mistaken as an affirmative response when instead it is a linguistic feature of processing visual information,”
She dispels another common myth that deaf people who can speak are more intelligent than those who only communicate in sign language.
“Not true, period. If you lost your voice tomorrow, and were unable to speak, would that make you less intelligent?” she asks.
Remembering back in the ’70s and early ’80s, Cotney said, “I represented about every deaf person who came through any court in Duval County. They would call me because they knew I could sign a little bit.”
While heaping praise on Chief Judge Donald Moran, who understood the need for accommodating deaf people in court from the get-go, other judges were not as informed.
“Some judges didn’t understand, suggesting, ‘Could we speak louder?’ One judge yelled at a client. I said, ‘Judge, you are not going to teach him to hear,’” Cotney recalled.
Decades later, a trend analysis conducted from 2006-07 by Jacksonville Area Legal Aid, reveals many attorneys still don’t understand their obligations or how to deal effectively with deaf clients.
“If they get a deaf client, I hope they’ll read this handbook. There’s no reason to fear it,” Cotney said.
In fact, there’s opportunity to make money.
An estimated 3 million people living in Florida have a diagnosed hearing loss, Caserta points out, and Florida has the second highest population of people who are deaf or hard of hearing in the nation.
“However, even with that high number, the deaf and hard-of-hearing community continues to be under-served by the legal profession,” Caserta writes. “Hopefully, this document will assist Florida Bar members become better informed so to alleviate the disparate treatment of deaf clients, and buttress The Florida Bar’s long-standing core value that all clients deserve competent and complete representation.”