Disability impacts all of us and knows no bounds. It transcends race, age, gender, and social economic status. According to the U.S. Centers for Disease Control and Prevention (“CDC”) more than one in four adults in the United States have some type of disability.[i] In 2024, 14.1 percent of Idaho adults have some type of disability.[ii]

These numbers are similar for youth. The National Survey of Children’s Health in 2019 identified one in four children ages 12 to 17 as having unique health care needs.[iii] In Idaho during the 2021-2022 school year, students with disabilities represented 11.6 percent of the student population.[iv] Given these figures, it is likely that members of the Idaho State Bar will represent a person with a disability sometime in their career.

In providing representation to individuals with disabilities as well an ensuring their equal access to the court system, attorneys and law firms are governed by the Idaho Rules of Professional Conduct (“IRPC”) as well as federal and state laws which prohibit discrimination based on disability. This article provides a general overview of such rules and regulations as well as best practices to meet these requirements.

Applicable Ethics Rules

While Rule 1.14 of the IRPC specifically governs clients with diminished capacity, there are other important rules to consider in representing people with disabilities. Rule 1.14(a) states, “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Commentary [1] for the Rule further provides, “The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.”

Forming the normal client-lawyer relationship also includes following the other applicable rules, including providing competent representation. According to Rule 1.1, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Specifically, Commentary [5] provides, “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”.

Lastly, pursuant to Rule 1.4 regarding Communication, reasonable communication between the lawyer and the client is necessary for the client to effectively participate in the representation. Under this rule, the client “should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.”

Federal and State Law Considerations

The Americans with Disabilities Act (“ADA”)

The ADA is a federal law that prohibits discrimination on the basis of disability in any place of public accommodation, including law firms.[v] Discrimination includes the failure to make reasonable modifications unless the modification will result in a fundamental alteration. Although there are many requirements under federal and state law, the two requirements most encountered in legal practice include ensuring communications with clients and their companions are effective and ensuring equal access for individuals with disabilities to be accompanied by their service animal. Title III of the ADA requires the public accommodation provide appropriate auxiliary aids and services where necessary to ensure effective communication.[vi] Title II of the ADA covers state and local governments (such as public education or town meetings) and also requires that communication with people with disabilities be as effective as communication with others.[vii]

For example, it may be necessary to provide and pay for a qualified an American Sign Language (“ASL”) interpreter to ensure the lawyer can effectively communicate with a deaf or hard of hearing client. If the aid or service would result in a fundamental alteration or undue burden, then an alternative aid or service needs to be considered and implemented. Fundamental alteration is defined as “a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.”[viii] Undue burden is defined as significant difficulty or expense.[ix] Deciding if an aid or service would result in a fundamental alteration or undue burden is made on a case-by-case basis. If the client wants a companion (someone other than the person receiving the good or service) to be present during the interview or communication with the lawyer but the companion needs an aid or service, the firm must provide such aid or service as well to ensure effective communication.

There are also Idaho state law licensure requirements when it comes to ASL interpreters.[x] Pursuant to this law, parents and family members are not permitted to serve as interpreters because interpreters must be licensed pursuant to Idaho law. Historically entities have expected a person who uses ASL to bring a family member or friend to interpret for him or her. However, “these people often lacked the impartiality and specialized vocabulary needed to interpret effectively and accurately.”[xi] Therefore, the ADA places responsibility for providing effective communication, including the use of the interpreters, directly on the covered entities.[xii]

For attorneys, the requirement to ensure effective communication, including the requirement to provide an ASL interpreter, if necessary, exists at all stages of representation from initial consultation to court appearances. Idaho Court Administrative Rule 50(e) further explains that attorneys can work with trial court administrators to ensure the effective communication needs of their clients are met in the court setting.

A person with a disability may be assisted by a service animal.[xiii] Under the ADA, a service animal is defined as dogs that are individually trained to do work or perform tasks for people with disabilities.[xiv] For example, a task could be alerting a person with a peanut allergy to traces of peanuts cooked in a dish. According to the ADA, service animals are allowed to be with their person in places of public accommodation, including in state and local governments, businesses, and nonprofit organizations that serve the public generally and even in places that do not allow pets.[xv] A firm can only exclude a service animal from it if it would fundamentally alter the function of the firm. This means that the service animal cannot be excluded based on allergies or a fear of the animal.

A person with a disability cannot be asked to remove their service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. If there is a legitimate reason to ask the service animal to be removed, staff must still offer the person with the disability the opportunity to obtain the services without the animal’s presence.

In 2010, the Department of Justice (“DOJ”) entered into a consent decree with a Colorado attorney who denied a person with a disability access to the firm based on their service animal. The attorney was forced to pay $50,000 in fees and penalties and undergo training.[xvi] Members of the Idaho State Bar should also be aware of the state law provisions applicable to service dogs, which provide an additional right to individuals with disabilities to be accompanied by their service dog in places of public accommodation, including certain rights for handlers of service dogs in training.[xvii] Under Idaho law, any person who intentionally denies a person using a service dog access to any place of public accommodation may be held criminally and civilly liable.[xviii]

Idaho Human Rights Act

            Similarly to the ADA, the Idaho Human Rights Act provides that places of public accommodation, i.e., businesses whose services are available to the public, may not deny an individual full and equal enjoyment of the goods, services, facilities, privilege, advantages, and accommodations they provide.[xix] According to this law, any person who owns, leases, or operates a place of public accommodation must make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford access, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the service.

Best Practices

In representing people with disabilities, you must refrain from making assumptions or judgments about the person’s ability to comprehend their legal case. Instead, as indicated by Comment 1 to Rule 1.14, the lawyer shall maintain a normal client-lawyer relationship which assumes that the client, when properly advised and assisted, can make decisions about important matters. No two clients are the same, which is true even if the client has a disability or the same diagnosis as another. For example, one client with post traumatic stress disorder (“PTSD”) will experience the condition differently than another client with PTSD.

To properly advise or provide sufficient information for the client to participate in the decisions of their case, it will take creativity to understand how to accomplish this for each client. It is always best practice to ask the client how they want their disability to be acknowledged or not in any legal documents. For example, some people prefer to identify as a person with autism while others will say they are an autistic person.

While it is appropriate to ask the client how they would like to be communicated with, often, even if I have a phone conversation with a client, I will follow up with an email detailing our conversation for the client to have a written record they can consult thereafter. Legal cases frequently contain complex concepts and language which can be challenging for any client to understand. The best practice when representing clients with disabilities is to communicate in plain language.

The best practice is to consult with the client to determine how they want to be communicated with. There are many communication services in use today. Some examples include Video Remote Interpreting, headphones compatible with hearing aids, screen readers, or providing documents in large print. Effective communication requires paying attention to the details of how a client wants to be communicated with. The client is the best person to know what type of communication works for them. If an interpreter is utilized, always speak directly to the client—who the lawyer has legal and ethical obligations to. When working with a client who has a service animal, always speak to the client and only acknowledge the service animal if the client allows. The service animal is working, and the lawyer’s ethical and legal obligations are to the client.

Pursuant to the Rules of Professional Conduct outlined previously, a lawyer must be competent to understand the factual and legal elements of the problem. Therefore, it is imperative to be able to communicate effectively with the client, who likely holds the factual information of the case. To assess the facts, it can be helpful to ask the client questions in a few different ways. One way can be asking yes or no questions. A lawyer may need to ask the client to repeat or explain statements made. To communicate clearly, lawyers should avoid compound questions.

When interviewing a client, it is best to limit distractions to assure everyone’s full focus during the interview. Some clients may prefer to have a trusted person with them when speaking with a lawyer. According to Rule 1.14, a client “may wish to have a family member or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege.”

However, lawyers need to communicate with clients the possible legal implications of having another person present. Even if the client chooses to have another person present, the lawyer must look to the client, not the other person, to make decisions on the client’s behalf, according to the rule. While lawyers need to be competent regarding the legal analysis of the case as well, it may be best to seek assistance on the disability aspects of the case, if the lawyer is unfamiliar with handling them.[xx]

Youth-Specific Best Practices

Comment 1 to Rule 1.14 states, “children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.” Youth clients with disabilities deserve to have their voices heard in legal proceedings, particularly when the case directly impacts them. It is best practice to determine the goals the youth wants to accomplish in their legal case and the best way to communicate the possible steps forward is through plain language. It can be helpful when interviewing the youth to have an activity for them to complete such as a fidget spinner or coloring book. This keeps the youth engaged but allows them to feel comfortable in the environment talking to a lawyer, likely about uncomfortable topics.

In many cases, parents and youth generally have similar goals. However, youth may not agree with their parent or guardian on how best to achieve those goals. For example, not all youth want to be labeled as having a disability and therefore do not want to be on an individualized education plan (“IEP”) in school. This can be a difficult situation to navigate as the lawyer since it is likely the guardian who is consenting to the lawyer’s help, but ultimately the youth is the client who will be directly impacted by the outcome.

If a 17-year-old youth for example did not want to be on an IEP and receive services, but the parent did, it would be difficult to advocate for this outcome since the youth who would actually get the services would have no buy-in or will to complete them. In fact, this outcome could be detrimental to the student who may instead form a school avoidance or truancy issue. If the youth were younger and experiencing this issue, it is always best practice to speak with both the guardian and the youth to hear all sides and try to come to a mutual agreement on the desired outcome. Maximizing the youth’s capacity to determine the direction of the representation and guiding them through the various steps to do so empowers the youth immensely to drive their own success.

Conclusion

As lawyers, we have a legal and ethical obligation to advocate for the outcomes our clients are seeking. To achieve this, we must listen and communicate effectively to understand their goals. For our clients with disabilities, this may mean taking extra time to edit the font size and type on documents to make them more accessible, hiring an interpreter to assist in ensuring your communications are effective, or sending follow-up emails. All of which is worth it to ensure we not only fulfill our ethical obligations but also treat our clients and their companions with the respect and dignity they deserve.  

Abbey Schulz is a staff attorney in the Youth Unit at DisAbility Rights Idaho. Abbey has been an advocate for the disabled community since her younger brother, Sam, was diagnosed with Autism. She worked at both the Indiana and Illinois Protection & Advocacy agencies before moving to Idaho. Beyond work, Abbey loves traveling with her husband.

[i] U.S. Centers for Disease control and Prevention, Disability Impacts All of Us Infographic, July 15, 2024, Disability Impacts All of Us Infographic | Disability and Health | CDC.

[ii] Stacker Media, LLC, These are the most prevalent disabilities in Idaho, Idaho Statesman, July 3, 2024, These are the most prevalent disabilities in Idaho | Idaho Statesman.

[iii] Data Resource Center for Child & Adolescent Health, 2019 National Survey of Children’s Health, 2019, NSCH 2019: Children with special health care needs, Nationwide, Age in 3 groups.

[iv] Idaho State Department of Education, Students with Disabilities Child Count 2021-2022 Percentage by Educational Region, Dec. 9, 2022, 2021-2022 Students with Disabilities Child Count, Percentages by Educational Region.

[v] 28 CFR § 36.201-36.213; 42 U.S.C. § 12101.

[vi] 28 CFR § 36.303(a); 42 U.S.C. § 12182(2)(A)(iii).

[vii] U.S. Department of Justice, Civil Rights Division, Guide to Disability Rights Laws, February 28, 2020, Guide to Disability Rights Laws | ADA.gov.

[viii] ADA National Network, Glossary of ADA Terms, Glossary of ADA Terms | ADA National Network (last visited February 14, 2025).

[ix] Id.

[x] Idaho Code § 54-2904.

[xi] U.S. Department of Justice, Civil Rights Division, ADA Requirements Effective Communication, February 28, 2020, ADA Requirements: Effective Communication | ADA.gov.

[xii] Id.

[xiii] 28 CFR § 36.302(c).

[xiv] U.S. Department of Justice, Civil Rights Division, ADA Requirements: Service Animals, February 28, 2020, ADA Requirements: Service Animals | ADA.gov.

[xv] Id.

[xvi] United States of America v. Patric Lehouillier and Lehouillier & Associates, P.C., No. 1:09-cv-02582-MSK-MEH, (D. CO. April 10, 2010).

[xvii] Idaho Code §§ 18-5812A, 56-704.

[xviii] Idaho Code § 18-5812A; §56-705.

[xix] Idaho Code § 67-5909(6).

[xx] Disability Rights Idaho, Contact, Contact – DisAbility Rights Idaho, (last visited February 14, 2025).