Hidden Disabilities and the Practicing Lawyer

Sara Granda and Stephanie Enyart both earned the right to take the California Bar Exam. I say "earned" because in addition to graduating from law school and meeting the other requirements of California's Bar Examiners, the two women suffering from disabling disabilities. This made them intended congressional beneficiaries of the Americans With Disabilities Act [ADA].

Granda, was left paralleled from the neck down from an auto accident. Enyart, suffers from Stargardt Illness, which is a deterioration of the central vision system. When the State Bar refused to let her sit for the exam, Granda sued and took her case all the way up to the California Supreme Court. Enyart sued the National Committee of Bar Examiners for its refusal to let her sit for the bar exam using adaptive technology specifically designed for persons with sight impairments. Both women gained national attention in the media and event will.

Practicing lawyers with "hidden" ADA disabilities face a different set of obstacles than those like Granda and Enyart who seek initial admission into one of America's state bar associations. Hidden disabilities include learning disorders, psychological and other rare disorders. There are reported cases where opposing counsel may take advantage of a lawyer's hidden disability to gain an unfair advantage in litigation. One such technique is to file an ethical complaint which is not well-founded in law or fact. Other charges often raised in these bogus disbarments are that the disabled lawyer engaged in "acts of moral turpitude" or was "disrespectful to the court."

Because state bar associations are "public entities" under the ADA, consequent discriminatory disbarment may institute violations of Title II of the ADA. Further violations may occur if the disabled lawyer is denied full and fair participation in a discipline proceeding, or denied other benefits based on his disability.

Other discriminatory acts which may violate Title II arise in attempts by a lawyer who resigns or is suspended or disbarred to gain re-instatement. In addition to provisions of the ADA, the safeguards provided by the US Constitution and federal civil rights statutes apply to the re-instatement process. Thus further violations could have been found by state bar official's refusal to provide documents or impose unfair and discriminatory limits on the re-instatement process.

The most common remedy available to lawyers with hidden disabilities is to file an ADA complaint with the US Department of Justice. ADA is enforced by the agency's Civil Rights Division. Local US Attorneys can receive, investigate and refer ADA complaints. Upon receipt of a Title II ADA complaint, the Justice Department will attempt to resolve the matter informally with the "public entity." If this can not be accomplished, it will provide the parties with a written finding of fact which includes the applicable remedies.

Whatever the facts or legal theories, it is always recommended that the aggrieved lawyer seeks the advice of a competent and qualified lawyer experienced in disability rights law.

Note: This article is for educational purposes only and not intended as legal advice.

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Phil Stimac

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