The Americans with Disabilities Act protects people with disabilities — including mental illness — from discrimination. So can a lawyer with a disability invoke the ADA when ethics regulators impose discipline for behavior that stems directly from the disability? While it may seem like a clever argument (and some lawyers have tried it), the answer is no. Here is why.
“It stands to reason that the ADA comes up when lawyers with disabilities face charges from ethics regulators … “
The ADA protects the disabled from discrimination in employment-related situations and in their access to government services. It stands to reason that the ADA comes up when lawyers with disabilities face charges from ethics regulators for allegedly failing to meet their duties as attorneys. However, ethics regulators are doing more — much more — than punishing lawyers for behavior brought on by their disabilities. They are protecting the public, ensuring the integrity of the profession, and enforcing continuing adherence to the admission standards for the practice of law. If a lawyer is unable to fulfill his duties due to his disability, then it is not discrimination to remove him in some way (through suspension or disbarment) from practicing law.
Purpose of the ADA
The ADA was passed in 1990, and it prohibits discrimination against and provides equal opportunities for people suffering from physical and mental disabilities in terms of employment, access to services, public accommodations, commercial facilities, and transportation. When train stations have wheelchair ramps and elevator access, local government offices have interpreter services for the deaf and blind, and an employer must provide screen reading software, thank the ADA.
Persons Protected by the ADA
The ADA protects “qualified individuals with disabilities,” which means anyone with a physical or mental impairment that substantially limits one or more major life activities, or who has a record of such an impairment, or is generally regarded as having such an impairment. 42 U.S.C. § 12102(1). When applied to public entities providing services to the public, that means someone who, with or without accommodations, “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(3).
Thus, an attorney battling depression that interferes with his daily life, or facing cancer treatments that make eight-hour work days impossible, would be protected by the ADA. What he is protected against, however, is discrimination. Even though he is covered by the law for professional licensing purposes, he must find a provision of the ADA to invoke against the bar if it alleges he failed to meet his obligations as counsel. Unfortunately, there is none.
ADA Employment Mandates
The employment mandates of the ADA are directed to employers with 15 or more employees, so a disabled lawyer working in a firm or a company is protected from discrimination for his disability by the employer, but he is not employed by the ethics regulators. So, even if the regulators sought to revoke his license to practice explicitly based upon his disability, the employment provisions would not protect him.
ADA Public Services Mandates
The ADA guarantees access to public government services for persons with disabilities. A glance at the lengthy list provided by the Federal government of enforcement cases under this provision of the ADA reveals that most of the cases involve physical access to the offices in which government services are rendered, such as wheelchair ramps into government buildings and accessibility of polling places. Cases regarding the actual rendering of services are frequently focused on the need for translation services for the deaf and effective communication with disabled persons in police situations.
No doubt a license to practice law issued by the state is a government service, and the ADA clearly requires reasonable accommodation for disabled applicants for licenses, such as accommodations at the facilities in which bar exams are administered. See 42 USC § 12189 (“such examination or courses [shall be offered] in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals”).
However, the essence of the issue for lawyers is whether the ADA applies to the disabled person’s conduct in the actual practice of law. This is not the same as allowing accommodation to take an exam; the lawyer’s conduct in the practice of law goes directly to the lawyer’s ability to fulfill his obligations to his clients, the general public, and the legal profession. This is not a question of whether a court must provide a deaf lawyer with an interpreter, but whether the lawyer must provide his client with the level of skill and diligence expected of a non-disabled lawyer.
Case Law is Sparse
There is not a lot of case law on lawyers litigating the ADA’s applicability to the practice of law once they are admitted. Most litigation focuses on getting admitted in the first place — accessibility of schools, accommodations for testing in school and on the bar exam, and issues related to character fitness examinations as part of the admittance process.
In California, however, one case is most informative: In re Wolfgram, (Review Dept. 1995) 3 Cal. State Bar Rptr. 355. Mr. Wolfgram was an attorney who suffered from depression.
California law allows the state bar to step in and force an attorney who is unable to meet his practice obligations onto inactive status, thus precluding him from continuing to represent clients. Cal. Bus. & Prof. Code § 6007(b)(3) provides the bar with this authority if, after notice and an opportunity to be heard, the State Bar Court finds that “because of mental infirmity or illness,” the lawyer is either (1) unable to or “habitually fails to perform his or her duties or undertakings competently,” or is (2) “unable to practice law without substantial threat of harm to the interests of his or her clients or the public.”
“[I]f the disability causes harm to clients and the public, ethics regulators are not bound to allow that harm to continue simply because the attorney suffers from a disability.”
The state bar brought a disciplinary action against Mr. Wolfgram alleging that he should be enrolled inactive because he was failing to meet his obligations as a lawyer. Mr. Wolfgram argued that the ADA protected him from being involuntarily enrolled inactive, which obviously forced him to close his law practice, because he was disabled within the meaning of the ADA and thus protected from retribution for his disability. Otherwise, he could only restart his practice by proving he was fit to practice law and able to meet the duties of a lawyer, a lengthy and difficult process involving petitioning the state bar for reinstatement.
The State Bar Court said no, the ADA did not preclude Mr. Wolgram from being enrolled inactive. Finding that the bar could only be held to the ADA rules pertaining to a “public entity” for purposes of Mr. Wolfgram’s argument, the definition of a “qualified individual with disabilities” requires that the individual suffering the infirmity be otherwise qualified to receive services or participate in the government programs to which he was denied access. Mr. Wolfgram was not qualified to practice law and maintain an active law license by reason of his conduct in failing to meet client obligations and his demonstrated difficulty with mental illness.
The key to the court’s holding was that Mr. Wolfgram was not being placed on inactive status because he was depressed. His inactive status was a result of his demonstrated inability to handle client matters without threatening his clients’ and the public’s interests. 3 Cal. State Bar Rptr. at 362. Contrasting the ADA’s requirement to provide accommodations for test taking, the Court said, “respondent can point to no provision of the ADA which would require the State Bar to make accommodations to allow respondent to practice law despite the substantial threat of harm to clients and the public as a result.” Id.
The court’s holding makes logical sense, and it seems perfectly sound to assume the same holding would be adopted in other states if the issue is raised. Much as the infirmed lawyer is entitled to protections under the ADA, the ethics regulators must also protect the interests of clients and the public. If an attorney is able to meet his demands of practice despite his disability by making reasonable accommodations in his employment, then he will be protected by the ADA from discrimination in employment situations and can continue his craft; but if the disability causes harm to clients and the public, ethics regulators are not bound to allow that harm to continue simply because the attorney suffers from a disability.
Steps Disabled Lawyers Should Be Taking
If the ADA is not going to protect an attorney whose illness or disability has led to ethics charges, lawyers with concerns about their mental or physical abilities should take steps to avoid landing before the regulators in the first place.
First, disabled lawyers should ensure they are getting reasonable accommodation for their disabilities in the workplace so that they are able to meet their obligations as counsel. If a disabled attorney is employed by an entity with 15 or more employees, subchapter 1 of the ADA applies to the employer, and a lawyer can make sure that he is being given adequate accommodation to meet his work’s demands. If he needs accommodations in facilities covered by the ADA related to his practice, such as in courtrooms, he can seek those accommodations so that he practices competently in court.
Second, he needs to be extra vigilant to maintain compliance with the applicable ethics standards. We all need to be aware of the rules and remain in compliance, but if an attorney suffers from a particular ailment with the potential to impact his ability to comply, he must be cognizant of his limitations and his propensity to have difficulties.
Third, any lawyer with a heightened likelihood of needing assistance must have a contingency plan in place. All attorneys really should have one anyway, since anyone could be struck down by a sudden accident or illness at any time; an attorney who knows his likelihood of needing help is greater than average needs to be pay close attention to his need for a backup. This may take the form of having a law partner who is aware of his illness and is kept up to date on his current matters, or it may be a written plan constantly updated and ready to be handed to an identified lawyer who has agreed to act as a backup in the event they are needed.
Have a Contingency Plan
“[L]awyers of all abilities are ethically permitted to engage in the practice of law as if they were superhuman … ”
The need for a lawyer suffering from a disability to have a contingency plan in the event he cannot continue his practice raises the question of whether a disabled lawyer — or any lawyer, in fact — has an ethical duty to establish such a plan.
There does not seem to be any affirmative duty to have a backup plan, no matter how much it may seem like a good idea to have one. In theory, lawyers of all abilities are ethically permitted to engage in the practice of law as if they were superhuman and nothing will ever interfere with their ability to continue to represent clients in full compliance with their ethical obligations.
Of course, once an attorney does falter in meeting his ethical obligations, disciplinary charges are waiting in the wings. One charge is bound to be failing to perform with competence. The entire lot of charges, and in fact the whole disciplinary investigation, could probably be avoided by the prior institution of a contingency plan.
So no, attorneys do not have an affirmative duty to have a backup plan in place. But failing to have one is extremely likely to lead to ethics charges in the event of a catastrophe — exactly what a lawyer does not need in the wake of a catastrophe.
The ADA for Prospective Lawyers
ADA law relating to lawyers is not done developing. Most recently, Louisiana has come under scrutiny from the Department of Justice for its admittance system, which includes questions of applicants’ mental health, burdensome additional investigations triggered by disclosure of mental health issues, and a conditional admittance system for applicants suffering from disabilities. In February 2014, the DOJ notified the Louisiana Supreme Court and its primary ethics regulators that after an investigation, it concluded that Louisiana is violating the public entities provisions of the ADA. This is not the first time Louisiana’s mental health questions have come under fire, as notably the country’s first openly transgender judge (Victoria Kolakowski, who sits in California) once had to sue Louisiana for the right to take the bar exam after Louisiana questioned her mental competence due to her gender choice. The DOJ investigation could have far-reaching ramifications, as every state has some form of character assessment as part of its admission standards and mental fitness is part of the assessment.
While applicants for bar admission may be most interested in the development of ADA law, practitioners should also keep abreast of how challenges under the ADA may impact them and their ongoing work. Mr. Wolfgram’s challenge was unsuccessful, but future efforts to modify the requirements applicable to disabled attorneys may have different results.
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