ABA House of Delegates Resolution 116C: Limitless Innovation for Everyone

At the ABA Annual Meeting in Chicago next month, the House of Delegates will consider Resolution 116C, an aspirational measure to promote web accessibility for all that supporters hope will amount to far more than just wishful thinking. The resolution encourages courts to apply the Americans with Disabilities Act (ADA) to attain maximum digital accessibility and inclusion—not only for websites but for all digital technology—and encourages the legal profession and its technology partners to pledge their commitment to achieving this goal. Following the Model Rules of Professional Conduct, most jurisdictions now recognize that lawyers have an ethical duty of technological competence. A prerequisite to commanding technology, however, is having access to it.

Sponsored by the ABA Commission on Disability Rights, Resolution 116C promotes digital accessibility and inclusion within the practice of law and well beyond:

RESOLVED, That the American Bar Association urges all courts and other appropriate government entities to interpret Titles II and III of the Americans with Disabilities Act (ADA) to apply to technology, and goods and services delivered thereby, regardless of whether the technology exists solely in virtual space or has a nexus to a physical space;

FURTHER RESOLVED, That the American Bar Association urges all courts and other appropriate government entities to interpret Titles II and III of the ADA to ensure that technology is accessible to and usable by individuals with disabilities in a manner that protects their privacy and independence; and

FURTHER RESOLVED, That the American Bar Association urges that all technology relating to the provision of legal services be equally accessible to people with a wide range of abilities and disabilities and, in particular, be accessible through assistive technologies that permit individuals with visual, hearing, manual, and other disabilities to meaningfully use this technology.

Technology has transformed the practice of law, as it has almost all of society. The ABA Commission on Ethics 20/20 recognized as much in its August 2012 report to the ABA House of Delegates:

Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how those services are delivered (e.g., in an office, over the Internet or through virtual law offices), and it is having a related impact on the cost of, and the public’s access to, these services.

Consequently, the 20/20 Commission declared that, “Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve.” In fact, technological competence is now an ethical obligation in most jurisdictions. Lawyers have a duty of competence under Rule 1.1, ABA Model Rules of Professional Conduct, which requires the “legal knowledge, skill, thoroughness and preparation reasonably necessary” to represent a client.

After receiving the 20/20 Commission report, the House of Delegates adopted Comment 8 to Rule 1.1, explaining that technological competence is integral to this duty:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

According to Robert Ambrogi’s LawSites blog, 31 states have adopted this comment and California, while not formally adopting it, has issued an ethical opinion (State Bar of California Formal Opinion No. 2015-193) acknowledging the lawyer’s duty of technological competence. But what is the point of demanding technological competence of lawyers if that technology is inaccessible to them?

Resolution 116C attempts to resolve this dilemma by advocating an interpretation of the ADA to require digital accessibility and inclusion, and by urging lawyers, law firms, and legal technology providers to innovate for users with a wide range of abilities and disabilities. These are ambitious goals. Right now, the United States Courts of Appeal are split on website accessibility, barely addressing other digital technology. Worse, legal tech companies have been slow to embrace accessibility and inclusion in their products.

In 2016, at the request of the Commission on Disability Rights and with the help of Lawyerist.com, ABA TECHSHOW surveyed over 120 vendors participating in TECHSHOW about accessibility. Specifically, the survey asked vendors whether their products or services were independently usable by persons with disabilities, including those who are blind or have visual impairments and use screen readers; deaf, hard of hearing; or who have mobility impairments and use voice command software. Among the 79 respondents, only eight indicated that their products or services were accessible to individuals with disabilities.

The next year, TECHSHOW organized a free workshop during the conference to help legal tech companies and law firms learn the social, technical, financial, and legal benefits from making websites and digital products usable and accessible. Called “Even Though Justice is Blind, Could She Use Your Website,” the workshop assembled experts from Equip for Equality, My Blind Spot, and Usablenet.com to offer advice on all areas of digital accessibility and inclusion. The workshop drew little interest, suggesting—as did the survey—that many legal tech vendors have yet to make accessibility a priority.

The same cannot be said about Clio, one of legal tech’s leading companies. The creator of the first widely used, cloud-based legal practice management software, Clio is actively embracing digital accessibility and inclusion. At the 2017 Clio Cloud Conference, Clio showcased the importance of driving innovation by celebrating our differences, a message delivered through one of the conference’s keynote speakers, Haben Girma—a disability rights and global inclusion leader, along with being the first deaf-blind person to graduate from Harvard Law School.

She enthralled the audience with her wit and wisdom, leaving them—after a rousing, standing ovation—with several insights that support the passage of Resolution 116C. Said Haben, “it’s better to be different and stand out. Own the ways you are different and celebrate them.” She noted that people with disabilities have created technologies, and technologies were created for individuals with disabilities, that have benefited everyone—like the typewriter, the internet, and visual languages. Finally, she is convinced that “disability is never the barrier; the barriers are society and the obstacles that people create.” She would love “a future where all websites, all apps, all services were accessible to everyone.”

Realizing this future is the goal of a group of students at Chase College of Law at Northern Kentucky University. Led by Marchesa Peters, a recent Chase graduate with a condition that may someday leave her blind, Chase students are launching a web campaign to promote digital accessibility and inclusion, called Accessible LIFE (limitless innovation for everyone). Ms. Peters approached the Commission on Disability Rights to move forward with Resolution 116C. The Accessible LIFE Campaign, launched in conjunction with Resolution 116C, will encourage law firms and legal tech providers to commit to adopting the most widely accepted digital accessibility standards for websites and mobile technologies—the Web Content Accessibility Guidelines (WCAG 2.1) from the World Wide Web Consortium.

Resolution 116C likewise urges that all technology relating to the provision of legal services be accessible, primarily—as the supporting report explains—through compliance with WCAG 2.1. At its October 2018 Clio Cloud Conference, Clio plans to host a developer’s track that includes content on compliance with the accessibility guidelines. Over 90 legal-related apps can be connected to Clio’s platform through its robust application programming interface (API). Clio will be encouraging its API partners to build accessibility into their products early in the development process.

Passage of Resolution 116C is not an end in itself, but rather a means to an end. Its higher purpose is digital equality—innovation accessible to everyone—which requires a supportive interpretative of the ADA and a commitment from lawyers and the technology companies that serve them. Because achieving accessibility often comes at a cost, especially where websites and products are inaccessible when developed, Resolution 116C may meet some resistance. But just as the real world must be open and accessible to everyone, so, too, should the digital world.

About the Author

Robert Furnier is the director of the W. Bruce Lunsford Academy for Law, Business + Technology and the Small Business & Nonprofit Clinic at Northern Kentucky University’s Chase College of Law, and is the chair of the Law Practice Division’s Diversity and Inclusion Committee.

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