Standards of Practice for Legal
Services for Victims of
Domestic Violence who are
LEP and/or Deaf and/or Hard of
Hearing
Deeana Jang and Robin Runge
Learning Objectives
• Be able to identify, understand and
incorporate the laws and policies
regarding language access into your legal
services
Sources of Guidance
• Title VI of the Civil Rights Act
• Americans with Disabilities Act
• State Language Access Laws and State
Disability-Rights Laws
• Legal Services Corporation Guidance (Issues
12/04)
• ABA Standing Committee on Legal Aid &
Indigent Defendants Standards of Practice for
the Provision of Civil Legal Aid (Revised August
2006)
• ABA Model Rules of Ethics
Federal Requirements for
Language Access
• Title VI of the Civil Rights Act
– National origin discrimination includes
language discrimination
– Executive Order of 2000
– Department of Justice LEP Guidance of 2002
– Agency specific guidance and policy
• DOJ
• HHS
• HUD
Title VI of Civil Rights Act of
1964
• Prohibits federal funding recipients from
discrimination based upon race, color or national
origin
• National origin discrimination includes
discrimination based on language
ALL AGENCIES THAT RECEIVE FEDERAL
FUNDING ARE RESPONSIBLE FOR
COMPLIANCE
Title VI Requirements for LEP
Language Access
• Under Title VI of the federal Civil Rights
Act and federal agency regulations
implementing Title VI, recipients of federal
financial assistance have a responsibility
to take reasonable steps to provide
Limited English proficient (LEP) individuals
with meaningful access their programs
and activities.
KEYS to TITLE VI
Compliance
• Assessment- frequency of languages likely to
be encountered
– Importance of the service
– resources
• Development of Comprehensive Written
Policy on Language Access
– Oral interpretation and written materials
– Notice about free language access
• Training of Staff
– LEP policies and working with interpreters
• Vigilant Monitoring/ oversight of language
assistance program
Executive Order 13166
• All recipients of federal funding (including
contract agencies) must provide language
access to persons with Limited English
Proficiency (“LEP”)
• Must ensure MEANINGFUL ACCESS to
services applicants and beneficiaries.
– No difference in services
– No unreasonable delay in services
Policy Guidance
65 Fed. Ref. 50123
• The Department of Justice tasked with
developing guidance for agencies
“Enforcement of Title VI of the Civil Rights Act of
1964--National Origin Discrimination Against
Persons with Limited English Proficiency: Policy
Guidance”
– Spells out concrete requirements
– Offers tips and guidance to agencies
Policy Guidance
• Must provide access to LEP individuals
• Agencies or entities conduct the following
analysis to determine what is compliance:
– Number or proportion of LEP individuals served
or encountered in the eligible service population
– Frequency of contacts
– The nature and importance of the program,
activity or services
– Resources available
What is the Number or Proportion of
LEP Individuals in Your Service
Area?
• Must include language minority populations that are eligible
for programs or activities but may be underserved
because of existing language barriers.
• How determine number of LEP individuals?
– Census data, data from school systems and from
community organizations, and data from state and local
governments.
– Community agencies, school systems, religious organizations,
legal aid entities, and others can often assist in identifying
populations for whom outreach is needed and who would benefit
from the recipients' programs and activities were language services
provided.
What is the Frequency of Contact with
LEP Persons within your Agency?
• LEP persons contacting agency on a daily basis means
higher responsibilities
• But even recipients that serve LEP persons on an
unpredictable or infrequent basis should have a plan to
provide access
• EX: being prepared to use telephonic interpretation
services to obtain immediate interpreter services.
Recipients should consider whether appropriate outreach
to LEP persons could increase the frequency of
contact with LEP language groups.
What is the Nature and
Importance of the Program,
Activity, or Service Provided by
your Program?
Will the denial or delay of access to services
or information have serious or even lifethreatening implications for the LEP
individual?
ADA & Section 504
• Under the ADA and the associated
regulations, public accommodations
and state entities are required to
provide ASL interpreters, and other
auxiliary aids, to ensure effective
communication with deaf and hard of
hearing individuals. Deference must
be given to the deaf or hard of
hearing individual’s choice of what
auxiliary aid she or he needs.
– 28 C.F.R. S28 C.F.R. S35.160 (b)(2) (NAD Law
Center, 2002).
Federal Law Requires Accessibility
to Services for Persons with
Disabilities
• Under the Americans with Disabilities Act legal
aid and other service providers must be
accessible to people with disabilities.
• These laws prohibit discrimination on the basis
of mental or physical disability in places of public
accommodation
• Failure to provide accessible facilities and
services to disabled battered women may
constitute a form of discrimination on the basis
of disability because they do not have access to
the same services and benefits.
Legal Services Corporation
Guidance
• Provide equal services to all clients regardless of
language ability
• Develop capacity to provide services in other
languages
• Establish new minimum standards for serving
LEP clients
• Devise language service protocols
• Train staff
• Provide notice of policy
• Monitor compliance
ABA/SCLAID Standards for the
Provision of Civil Legal Aid
Standard 4.6:
• Communication in the primary languages of
persons served
• Burden is on the provider, not the client to
provide language access
• Ties in ethical requirements of attorneys to
ensure effective client communication
• Echoes themes of LSC Guidance of
comprehensive plan, capacity and protocols,
and training and evaluation.
ABA/SCLAID Standards for the
Provision of Civil Legal Aid
Standard 4.3: Use of Interpreters
• Protecting client confidences is essential
when working with an interpreter
• Legal services provider should assure that
interpreters are aware of the responsibility
to protect client communication
ABA Model Rules of Ethics
Rule 1.4 – Client Communication
• Attorney must inform, consult, and advise the
client
• Must obtain facts from client accurately
• Must dispense advise effectively
• Attorney has the burden to ensure
communication
• Attorney has the obligation to understand what
their client is saying and to ensure that their
client understand what the attorney is saying
ABA Model Rules of Ethics
Rule 5.3: Non-Lawyer Assistants
• Lawyer has a duty to ensure that nonattorneys comply with rules
• Interpreters are included in confidentiality
if he/she is staff or contractor of attorney
• Consider need for policy or written pledge
by interpreter promising not to render legal
advice
ABA Model Rules of Ethics
Rule 5.3: Non-Lawyer Assistants
Interpreter as agent of attorney
• Privilege can be protected with interpreter
present
• Need to limit interpreter to agent and
confident role
Danger Zone: Informal Interpreters – what if
the interpreter is a volunteer?
ABA Model Rules of Ethics
Confidentiality and Interpreters
Rule 1.6: Confidentiality
• Interpreter ought to be bound by
– Agreement or contract
– By interpreter ethical standards
Informal interpreters raise issues because they
are not under the attorneys control
Resources
• http://www.usdoj.gov/crt/ada/publicat.htm for
information about Title III of the Americans with
Disabilities Act
• http://www.usdoj.gov/crt/cor/ for information
about Title VI and implementation by federally
funded organizations.
• www.lep.gov for information about obligations to
provide services to LEP individuals.
Federal Interagency LEP Work
Group
• Know Your Rights brochure:
www.LEP.gov/LEP_beneficiary_brochure.pdf
(English, Spanish, Korean, Russian,
Vietnamese, Russian, Cambodian, Arabic,
Haitian-Creole, and Hmong)
• LEP Video: “Breaking Down the Language
Barrier: Translating LEP Policy into Practice”
(English, Spanish and Vietnamese; Chinese and
Korean subtitles)
HHS Resources
• OCR/HHS: www.hhs.gov/ocr
• Trafficking Fact Sheets (Spanish, Polish,
Russian and Chinese),
http://www.acf.hhs.gov/trafficking/about/factsh
eets.html
• www.healthfinder.gov (links to health
information in English, Spanish, and Asian
and Pacific Islander languages)
• Providing Oral Linguistic Services: A Guide
for Managed Care Plans, Centers for
Medicare and Medicaid Services,
http://www.cms.hhs.gov/healthplans/quality/pr
oject03.asp?
DOJ Resources
• U.S. Department of Justice, Civil Rights Division,
http://www.usdoj.gov/crt/cor/13166.htm
• “LEP Resource Document: Tips and Tools from
the Field,”
http://www.lep.gov/lepconf_linkspage.htm
• Letter to State court administrators,
http://www.lep.gov/courtsletter_generic.htm
• Language Assistance Self-Assessment and
Planning Tool,
http://www.lep.gov/selfassesstool.htm
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Standards of Practice for Legal Services for Victims of