Accessible Practice: The Pandemic Digital Shift: Considerations for an Accessible Legal Practice
The onset of the COVID-19 pandemic in early 2020 triggered an acceleration of the legal profession’s entrance into the digital age. Legal practitioners accustomed to working from the office every day had to pivot and deliver their services remotely from home; Judges no longer sat at the Bench in court, but rather from a remote location; and parties accustomed to attending court alongside their legal representative were now having to familiarize themselves with technological tools, some of which they may have never encountered, in order to access legal forums.
With change comes challenge, and the pandemic has proved no different. All members of the legal profession – including lawyers, paralegals, law clerks, Judges, administrative staff, and even courts and tribunals themselves – have had to adapt to ensure legal services remain available and accessible for members of the public. But, and just as importantly, the public has also had to adjust their expectations as to the way in which they may receive legal services and how they may be able to access the court and tribunal system.
While any changes to the legal profession certainly have, and will continue to have, an impact on clients and client communities, it is without a doubt that persons with disabilities attempting to access justice and access legal services may experience a disproportionate impact in a post-pandemic world. Accordingly, in adapting their services, all courts, tribunals, and legal professionals must ensure that they are implementing a system that is accessible to persons with disabilities.
With a focus on the delivery of legal services to disability communities, this post will explore what lessons learned from the pandemic should be carried forward post-pandemic.
Pandemic impact on legal practice: Technology and Accessibility
Until recently, the legal profession has been slow to embrace, adopt and implement the digitization of many of its services, often relying on antiquated methods. Case in point, many law offices, courts, and tribunals still use facsimile as a means of correspondence and filing materials. With the arrival of COVID-19 and the shift from working at the office to working from home, the profession has had little choice but to learn, and learn quickly, how to continue providing services almost exclusively from a digital platform.
At this time, it is hard to predict what the post-pandemic world will look like for the legal services and processes. It is imperative, however, to consider what lessons the legal profession has learned over the pandemic and which tools to carry forward in the delivery of legal services.
(a) Electronic Signatures
Interestingly, many of the tools that legal professionals may now perceive as second nature or that may even may make the execution of their tasks on a file easier, are the very same accommodations that many clients with disabilities sought pre-pandemic, but which the legal profession may have been hesitant to provide. By way of example, consider the use of electronic signatures. Some clients may not be able to sign documents because of a physical disability. For example, some persons with vision disabilities may be able to sign their name but not see and verify whether the signature is consistent. These clients often encounter barriers to entering into contracts, obtaining financial services, accessing social programs, executing legal documents, obtaining medical treatments, and many other acts.
In light of having to conduct the solicitor-client relationship remotely, however, the use of electronic signatures has become more acceptable. There are a myriad of alternatives to having a client physically sign a document and so long as the lawyer is certain of the client’s intention to sign the document, then the method used should not be a barrier to executing said document. It may be of interest to note that even Judges are now using electronic signatures on Orders and Endorsements.
By the same token, however, electronic signatures cannot be the only alternative to an original signature. Clients with disabilities may also be prevented, for various disability-related reasons, from signing electronically. Accordingly, legal professionals must be flexible and accommodating of their clients’ needs; this means, accepting signatures that are in the form of “a mark”, a signature stamp, or signatures via a signature agent.
(b) Communicating with Clients
Legal professionals, due to the pandemic, are now much more comfortable meeting with clients over videoconferencing as opposed to conducting meetings strictly over the telephone, or in-person. Pre-pandemic, many clients required videoconferencing as a disability-related accommodation. For example, for clients who are deaf or hard of hearing, video-conference enabled them to read lips, or to have an ASL interpreter or a captioner present to ensure they received all necessary information. For other clients with disabilities, an in-person meeting with a lawyer was the preferred choice, but due to barriers to, for example, transportation, they were unable to make it to the lawyer’s office. Videoconferencing allows a client to experience an in-person meeting with their lawyer that they may have been able to access had it not been for barriers they experienced based on their disability.
Meeting with clients over videoconference has proved to be a valuable tool for both the legal professional as well as the client. It is a practice that should be carried forward, but, again, it cannot be the only option for which a client can meet with their lawyer. As in a pre-pandemic world, clients often had the option of meeting with their lawyer in-person or to discuss their matter over the phone. For clients with disabilities these options should still be available in addition to meeting over videoconference. This is especially importance since, for some clients with disabilities and especially those who are lower-income, having access to videoconferencing is not feasible. For example, some clients do not have access to a computer, or to internet. Some clients may have to visit their local library to access both a computer and internet to meet with a lawyer, but in doing so endanger their privacy by discussing confidential matters in a very public place.
An issue of accessibility that may or may not have arisen for some legal practitioners is with respect to documents. Lawyers may spend hours drafting application forms, pleadings, motions, settlements offers, and so on, that then must be reviewed by the client prior to filing or prior to sending to the opposing party. What is often neglected by some practitioners, however, is ensuring that the document to be reviewed is accessible to their client. While this is an issue that may certainly have arisen prior to the pandemic, it became especially acute when clients could not access documents in any other format besides electronically. Inaccessible documents include PDFs which are notorious for being inaccessible to screen readers which are used by persons with vision disabilities; some legal practitioners may also not be aware that “justifying” their documents in Microsoft Word, create “rivers of white” making it more inaccessible for persons with low vision to be able to read without difficulty. The legal practitioner must shift their mindset to consider not just the content of their document, but also to consider whether or not their document is accessible.
Access to Tribunals: A Case Study of the Human Rights Tribunal of Ontario
Aside from legal practitioners, courts and tribunals themselves have been considering how to conduct their matters remotely. Perhaps one of the better examples of embracing and implementing electronic formats comes from the Human Rights Tribunal of Ontario (HRTO) which introduced its “Digital First Strategy” in late Autumn of 2020. In particular, the HRTO’s strategy sought to implement virtual proceedings as the predominant method of conducting its hearings and mediations.
Adopting a digital strategy, especially considering the fast pace in which it was adopted and sought to be implemented, was commendable and necessary to adapt and respond to the pandemic. At the same time, it is important that no new barriers would flow from such a policy.
Some of the concerns identified by ARCH with respect to the HRTO’s strategy are as follows: First, and foremost, the policy is developed on the assumption that every party to a hearing has access to a computer, has access to high-speed internet, and has access to a private space in which to attend a hearing or mediation. As ARCH made clear in its submissions on this issue, this is incorrect.
Many applicants appearing before the HRTO are of various socio-economic status, and are from regions across the province. Consider the use of electronic filing in lieu of filing applications or pleadings into tribunals or courts by courier, in-person, by mail, or by facsimile. For some members of the public this has made the legal process more accessible, for example, for those who do not have access to a fax machine, or cannot attend at a court counter to file their documents in person, or for those who cannot print their documents at home in order to mail their forms to a tribunal. For other parties with disabilities, however, electronic filing has erected more barriers, proving that digitization is not always ideal, nor does it always ensure a more accessible process or forum.
Aside from this, a virtual hearing requires the parties to be familiar with the use of a computer, with accessing and using virtual platforms, and to be able to troubleshoot should technological difficulties arise. Over and above this, specific disability-related barriers may arise leading up to the hearing or at the hearing itself. This is especially disconcerting for parties appearing before the HRTO self-represented, for the first time, and who are still familiarizing themselves with the HRTO’s process, in addition to having to navigate a virtual hearing. This is a burden on any applicant, but especially on an applicant who may experience barriers specific to their disability because of the (virtual) nature of the hearing.
It is important to note here that the solution to these concerns is not to eliminate virtual hearings completely. Rather, it is incumbent upon the forum adopting this strategy, in this case the HRTO, to ensure that any policy it adopts does not burden the recipient of its services, namely the parties. In other words, any strategy contemplating a shift to operating digitally – either wholly or partially – cannot in effect offset accessibility considerations to the end-user.
As a course of practice, forums like the HRTO must ensure that in creating “digital first” policies, they do so in a way that allows for a flexible approach in how it conducts proceedings. Some of the steps that the HRTO can take to address access to justice barriers that may be inadvertently created by a digital first strategy include ensuring that virtual proceedings do not completely replace in-person proceedings post-pandemic and allow in-person hearings when parties request them on the basis of a disability-related need or because of barriers related to their socio-economic status.
Further, if the HRTO – or any other court or tribunal – is going to implement virtual proceedings then it must ensure that the platform of its choice is a user-friendly one that is simple to access and use especially for persons unfamiliar with technology.
The potential consequences of a shift to virtual proceedings also includes the possibility of privacy breaches of the parties; this includes, as mentioned above, the lack of access to private spaces for some persons. But just as importantly, the tension arises here between the open court principle – ensuring that hearings remain open for attendance by the media and members of the public – and protecting the privacy interests of parties appearing before the HRTO. As stipulated by ARCH in its submissions to the HRTO, the concern for privacy protection includes how the HRTO intends to enforce the rule that proceedings are not to be recorded and distributed on the internet. While members of the public are not permitted to record any part of the proceeding, this is a rule that is much easier to enforce in a controlled physical hearing room environment than in a remote setting.
Practically speaking, the HRTO must also allow room for test runs and lead time prior to the start of any virtual proceeding. This includes, for example, allowing parties to “enter” a virtual hearing room a half hour prior to the start of the actual hearing. In this way, should any technological difficulties arise, they can be dealt with prior to the start of the hearing and without taking up valuable hearing time. Test runs also allow parties to familiarize themselves with the virtual platform and to also learn what is expected of them at a remote hearing.
One issue that is often neglected but has become of extreme importance in the adoption of digital strategies is ensuring that parties to a hearing are not re-traumatized or exposed to trauma during any part of the hearing. Many persons who have used virtual platforms over the last year have most likely experienced what is referred to as “Zoom bombing” whereby members of the public interrupt a meeting (or hearing) on Zoom, often using language that spans the spectrum of inappropriate and vile, and at times using inappropriate images and gestures. For an applicant appearing before the HRTO this might be quite jarring and lead to re-traumatization by this exposure. If a person appearing before a tribunal is there because of a discriminatory incident based on their disability or race, they may be further traumatized by a Zoom bombing incident that uses ableist or racist language.
Advocating for your client’s accommodation needs in a digital world
While the recommendations made above are aimed at the legal forum that has implemented, or is in the midst of implementing, a policy prioritizing the delivery of its services via digital formats, it is incumbent upon legal professionals to familiarize themselves with these policies in order to inform their current and prospective clients, but to also ensure that the lawyer or paralegal themselves are exercising their duty to advocate on their client’s behalf to the best of their ability to help facilitate the client’s full participation in the proceedings.
This includes, but is not limited to, reaching out to a court or tribunal on behalf of their client about barriers specific to their client and the accommodations that the client needs in order to navigate around said barriers. It is advisable that the lawyer bring the attention to these new policies, and their potential impacts on how a proceeding may unfold, to the client’s attention first. In this way, the client may be able to raise issues and concerns from a disability-related perspective that may not be recognized by the lawyer. It also enables the lawyer, as the legal representative, to address these concerns with the client and, as mentioned above, raise them with the tribunal or court at the earliest possible, in the hopes of resolving the issue without delaying the matter or process.
Some tribunals and courts acknowledge their own responsibility to provide accommodations to parties in order to facilitate their full participation in proceedings. For example, Rule A 5.1 of the Social Justice Tribunals Ontario Common Rules, for example, a party is entitled to accommodations of needs related to the protected grounds in the Human Rights Code, to access a tribunal’s process. Further, the HRTO relies on an Accessibility and Accommodation Policy that sets out that it is “committed to providing an inclusive and accessible environment in which all members of the public have equitable access to our services” and that it is “committed to providing accommodation for needs in accordance with the principles of the Human Rights Code.”
In its Policy on Accessibility and Accommodation, the Ontario Judicial Council (OJC) which it commits to providing an inclusive and accessible environment to ensure that all members of the public have equal access to its services and are treated with dignity and respect. Accordingly, the OJC commits to providing accommodations for disability-related needs up to the point of undue hardship.
The importance of having policies such as these in place is twofold. First, the acknowledgement of courts and tribunals regarding their duty to accommodate communicates to the public, and specifically to members of the public with disabilities, that these legal forums are taking steps to make their services and their spaces as accessible as possible. Secondly, each of these policies provides the process to be followed by parties seeking accommodations, leaving much of the guesswork out of the equation. As legal practitioners, it is imperative to become familiar with these policies to either (a) advise prospective clients as to how they can seek disability-related accommodations, or (b) to be able to request accommodations on behalf of your current client as their lawyer or paralegal.
With legal practitioners, courts, and tribunals pivoting to remote and digital services delivery during the pandemic, it is important to reflect on how these changes impact clients with disabilities and the barriers they may experience in accessing justice. While technology may, at times and for certain clients create room for more accessible measures and alternatives, lawyers and paralegals must consider how new (digital) techniques adopted into their practice may create new barriers for some clients with disabilities. Over and above this, legal professionals must remain alive to new digital measures implemented by courts and tribunals that may bar clients with disabilities from being able to fully participate in the process and the proceedings.