The Legal Intelligencer Blog

The Effect of Retiring on Workers’ Compensation Benefits

By James W. Cushing
Special to the Legal

The matter of Krushauskas v. Workers’ Compensation Appeal Board, 56 A.3d 64 (Pa.Cmwlth. 2012), involved a claimant who suffered a work-related injury while working as a stock picker for General Motors. Claimant Thomas Krushauskas filed a penalty petition against GM alleging it unilaterally suspended his benefits without any additional agreement or order. Simultaneously, Krushauskas voluntarily entered GM’s attrition plan and accepted early retirement. The court noted that no one was forced into the attrition plan and, in fact, Krushauskas had 45 days to revoke the decision to enter it. Krushauskas argued that he did not intend to retire and was simply taking advantage of the plan offered.

The court ruled that GM violated the Workers’ Compensation Act when it unilaterally – without agreement or court order as a result of Krushauskas’s retirement – suspended Krushauskas’ benefits because of him retiring per his entrance into the attrition plan. Generally, an employer is supposed to file a petition specifically requesting the relief sought. Despite this, the court noted that it has never required unreasonable strictness in workers’ compensation pleadings. Unfortunately for Krushauskas, because the court also ruled that he did, indeed, retire, the unilateral suspension did not cause any loss in workers’ compensation benefits owed to him.

The court’s ruling that Krushauskas did retire, contrary to his argument that he did not actually intend to do so, was based on a credibility determination of Krushauskas’ testimony. As stated above, Krushauskas’ representations in the documentation for the attrition plan indicated retirement and the court found those representations likely to be true.

Perhaps the most significant aspect of the court’s ruling is that it clarified and consolidated previous rulings that a workers’ compensation judge has the authority to suspend/terminate a claimant’s benefits without a formal petition from the employer as long as doing so would not be prejudicial to the claimant. A claimant having an opportunity to defend him or herself, and/or having adequate notice, would tend toward the matter lacking prejudice against the claimant even if the workers’ compensation procedures were not followed with precision.

The court noted, based on the facts presented, that Krushauskas certainly had sufficient notice and knew a suspension of benefits was possible. Indeed, the court drew significance from the fact that when GM argued that Krushauskas voluntarily retired, he objected on the basis of relevance, and not surprise, which would have been the objection if he did not have sufficient notice. Furthermore, Krushauskas never attempted to submit additional evidence to oppose the argument that he voluntarily retired.

The court further indicated that where someone accepts a retirement pension, as Krushauskas did here, then the employer is entitled to a suspension of benefits. Benefits will be suspended unless the claimant can show that he is seeking employment or he was forced into retirement because of a work-related injury. In the instant case, Krushauskas clearly accepted a retirement pension and never testified to seeking new or continued employment.

When collecting workers’ compensation, be sure to consider all implications before accepting a retirement plan or pension, as the workers’ compensation benefits may be terminated long before expected.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

Is It A-OK Withdrawing From a 401(k) for UC?

By James W. Cushing
Special to the Legal

A question was recently posed to me asking whether a withdrawal from a 401(k) would cause one’s unemployment compensation benefits to be denied, be diminished or even cease if already in payment. The answer to this inquiry is not totally clear.

43 Pa.C.S.A. 804(d)(2)(i) states: “Periodic payment, under a plan maintained or contributed to by a base period or chargeable employer, the weekly benefit amount payable to such individual for such week shall be reduced, but not below zero, by the pro-rated weekly amount of the pension as determined under Subclause (ii)” and 43 Pa.C.S.A. 804(d)(2)(ii) states: “If the pension is entirely contributed to by the employer, then one hundred per centum of the pro-rated weekly amount of the pension shall be deducted. … [I]f the pension is contributed to by the individual, in any amount, then fifty per centum of the pro-rated weekly amount of the pension shall be deducted.”

The obvious questions that arise are, is a 401(k) a pension under the above statutes, and what if someone withdraws funds from their 401(k) before he is of retirement age as one would withdraw funds from a bank account? Answers to these questions are not readily forthcoming from the cases decided under the unemployment compensation law, but need to be parsed from cases dealing with other retirement vehicles (Wise v. Unemployment Compensation 707 A.2dc 627 (Pa.Cmwlth. 1997)).

After a review of the Wise case, it appears that if someone withdraws money from a 401(k) after he has reached an age of 59½, which enables the withdrawal to be made without a penalty, then the statutory guidelines laid out above apply and unemployment compensation benefits are reduced, possibly to zero. If someone is under the age of 59½ and rolls over the funds in his 401(k) into another retirement vehicle/investment in order to avoid the penalty for withdrawal, but does not withdraw any of the funds in it, then the above guidelines laid out do not apply and the unemployment compensation claimant can receive benefits without the statutory reduction in the same. Indeed, the Wise court opined that a roll over is not actual receipt of the funds and the claimant ought not be penalized with a reduction of unemployment benefits.

Unfortunately, courts generally have not directly addressed a situation in which someone who is under 59½ withdraws all of his funds from his 401(k), and pays the 10 percent penalty required for so. The court appears to imply that it does not believe it is just, or consistent with legislative intent, to make someone pay a penalty on the withdrawal and also be subject to a reduction of unemployment compensation benefits per the above statutory guidelines, as that would amount to a double penalty; however, the court did not rule on this scenario.

One question that the court does not appear to have addressed at all is if a claimant withdraws all funds from a 401(k) (with penalty) under the age of 59½, which could lead to a reduction of unemployment compensation benefits, does it matter if the contributions were made solely by the claimant, were made solely by the employer or the contributions came from both sources. If the 401(k) is comprised entirely of a claimant’s own contributions, would not those assets be his own as if he had contributed to a bank account, which would not affect benefits at all under normal circumstances? Are an employer’s contributions somehow different?

Per the Wise court’s dicta, one could reach the conclusion that one can withdraw all funds from a 401(k) under the age of 59½, pay the penalty for doing so, and still be eligible for the full unemployment compensation benefit amount. In saying that, however, due to government budget constraints and current economic conditions, the Department of Labor (and sometimes the courts) has been trending toward finding and justifying reasons to reduce or eliminate unemployment compensation benefits. Indeed, even if a claimant would be ultimately successful using the arguments laid out above, I would not at all be surprised if the Unemployment Compensation Board of Review, taking advantage of the ambiguity described above, would rule an under-59½ year old claimant ineligible due to withdrawing his entire 401(k) and make the claimant appeal the decision and make the above arguments at a referee’s hearing.

Ultimately, I think the odds are that the law will ultimately settle on specifically permitting full benefits to be paid to someone who withdraws all funds from a 401(k) with a penalty while under the age of 59½. I think this is likely because it is consistent with the case law described above and it avoids having to formulate a policy to address a claimant’s own contributions to a 401(k) as distinct from an employer’s contribution. For the practitioner, I think it would be prudent to inform his client of the risks described above, and even if the chances of success are high, to be prepared to have to engage in the hearing process to arrive there.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

Get ‘Em Out By Friday: Landlord-Tenant Disputes

By James W. Cushing
Special to the Legal

Back in the early 1970s, when the band Genesis, a progressive/art-rock band at the time, still had musical credibility, they released one of their more theatrical songs called “Get ‘em Out by Friday” on their classic album Foxtrot. It is one of my favorite albums, and every time I hear the song, with many of the lyrics being dialogue between landlord and tenants, it quickly brings to mind my own landlord-tenant cases. In the song, despite the desperate pleas of the pathetic tenants to stay – even offering to pay double the rent – Peter Gabriel, playing the role of the landlord, bellows “Get ‘em out by Friday!”

Many of my tenant-clients are struck by what they think is an inherent injustice in landlord-tenant law in two ways. First, tenant-clients obviously view their possession of a rented space with a certain amount of ownership interest. Even if they don’t own their place, it is still their home. Further, they also believe that being a “good tenant” (i.e., remaining current on rent and taking care of the property) should be rewarded with a certain amount of loyalty to them from the landlord. Unfortunately for tenants, neither of these is the case. Landlords have no obligation to reward and/or have loyalty for and/or give allowances to tenants who are so-called “good tenants.” As long as the terms of the lease are met, a landlord can request a tenant to vacate at any time at his or her own discretion. Additionally, regardless of whether the tenant pays rent timely and consistently, if the lease is a month-to-month lease, the landlord can request the tenant to vacate the premises within 30 days at the landlord’s discretion, or even less if the lease so permits.

Second, there are times where a landlord can be terrible, whether that means he or she is slow to maintain the property, has license and inspections violations, or is generally nonresponsive. Unfortunately for tenants, however, if the outstanding maintenance (and/or other) issues are cleared up and/or not raised by the tenant in court, the landlord again can request the tenant to vacate the property at any time (presuming he or she is in compliance with the terms of the lease). Indeed, many tenants believe an eviction action against them is often a form of retaliation for, say, reporting the landlord to Philadelphia Licenses and Inspections. They may be right, but unfortunately, contrary to popular belief, a tenant of a less-than-good landlord does not acquire additional rights, defenses and/or some sort of immunity from eviction. As long as there is compliance with the lease and the law, a landlord can pursue the eviction of a tenant at any time even when the landlord’s performance has historically been rather poor.

When counseling tenant-clients, it is important to impress upon them that landlords can pursue them at any time – within the bounds of the lease – regardless of how good of a tenant they are and how poor of a landlord they have. It is important to advise tenants to always be prepared for a landlord to request them to vacate the premises. More importantly, it is important to advise tenants that while they may win the initial battles against landlords for various maintenance and/or licenses and inspections issues, as soon as they are resolved, they should be prepared for an eviction action against them that will likely be successful. So, despite being a good tenant or being subjected to a bad landlord, at some point a landlord can – and likely will – loudly and successfully bellow “get ‘em out by Friday!”

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

 

 

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the Third Circuit restating its prediction that the Restatement (Third) of Torts, not the Restatement (Second), will be adopted in Pennsylvania by the state Supreme Court. As reporter Amaris Elliott-Engel writes, some district courts have said the Restatement (Second) should apply because the high court has not affirmatively adopted the Restatement (Third).

Also above the fold on Page 1, reporter Ben Present writes that Jerry Sandusky filed post-sentence motions arguing the judge presiding over his trial denied him due process by failing to grant him several motions for a continuance before his June trial.

Below the fold on Page 1, reporter Gina Passarella writes that the state Supreme Court has ruled that the state’s Coroner’s Act does not give a county coroner the discretion to deny a request for immediate disclosure of someone’s manner of death.

In more Regional News on Page 3, a former Dechert associate’s retaliation claim has been allowed to proceed in a case alleging the firm’s “macho culture” caused his work troubles.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Family Law column on Page 5, James W. Cushing writes that substantial evidence must be used to convince the court in child abuse cases based on a recent case that profoundly changed the burden of proof to have someone listed on the ChildLine and Abuse Registry as a perpetrator of child abuse.

In a Bankruptcy Update on Page 7, Eric Scherling writes that the Third Circuit has protected post-confirmation appeals in the case of In re Philadelphia Newspapers.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

The Pros and Cons of a Cut-Rate Divorce

By James W. Cushing
Special to the Legal

I am sure you have seen billboard or newspaper advertisements that read something like “$250 Divorce!” or “Divorce Only $350!” Usually, the prices indicated are less than $500; indeed they are so low that they are less than the typical lawyer’s hourly rate for one hour of work, let alone a proper full retainer. How can these rates be so low for this sort of work? Clearly there has to be a catch.

Like most unbelievable deals, the cheap rates do come with a catch, but for some people it may be a risk worth taking. The key to one of these low-cost divorces is that they require filing in a distant Pennsylvania county, usually where neither party resides - Potter County, for example - and a guarantee that there will be no resistance from the opposing spouse or any sort of property division.

The reason for filing in places like Potter County is that the total court fees and costs for a divorce are $69. This is in contrast to the court fees and costs for a divorce, in Philadelphia, which currently are $316 for the complaint and $66 for the praecipe to transmit, plus other fees required for motions and/or seeking equitable distribution, etc. So, right off the bat, there is more than a $300 savings in court costs and fees alone. It should be noted that the opposing party must stipulate to the jurisdiction of a foreign county over the divorce or else the entire endeavor to file the divorce in that county is a non-starter.

The reason for restricting these divorces to matters where there is complete cooperation and no property division is because, perhaps obviously, fees begin to add up when the parties start bickering over various things or need to seek some sort of property division, whether by agreement or order of court. As soon as either one of the above begins to occur, the low rate is immediately untenable for the lawyer representing one of the parties. If the parties are completely cooperative without any sort of property division, litigating the divorce only involves preparing some form documents and filing them at the correct times and in the correct order. Obviously, litigating in this fashion will take very little time or effort on the attorney’s part, which justifies taking the case at such an extremely reduced rate.

So, from the client’s point of view, there is a risk or tradeoff. On one hand, filing in your local county is more expensive, but if something goes wrong you have the security of being able to litigate the issues conveniently and locally without having to withdraw your complaint and start afresh elsewhere. On the other hand, filing in a different county is very cheap and easy, but if something goes wrong, the cost to litigate in a very distant county likely becomes prohibitively expensive and extremely inconvenient. Either way, you will have to withdraw your complaint in the foreign county and file a new complaint in your own county, potentially wasting the time and money that was spent filing elsewhere.

Both of the above options are viable and legitimate; it just depends on whether the circumstances suggest one over the other. Ultimately, the decision of where and how to proceed lies with the client as long as he or she is fully aware of the pros and cons, and costs and benefits, of each of the options described above.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

The House Loses?

By James W. Cushing
Special to the Legal

 They say the house always wins at a casino; however, against all odds, one would wager that a recent case brought in Atlantic County, N.J., seems to be a victory for the gamblers instead.

Back in April, a group of gamblers playing baccarat at the Golden Nugget in Atlantic City were astute enough to notice that with each successive hand, the same pattern of cards were dealt. The pattern was so consistent that the gamblers won 41 consecutive hands for $1.5 million worth of winnings.

The casino suspected the gamblers of cheating and approached at least one of them by allegedly waking him in the middle of the night in his hotel room and interrogated him – allegedly dealing him some physical force – and deprived him of food, water and an English interpreter for eight hours.

As it turned out, the gamblers did not cheat. Instead, it was discovered that the casino purchased its cards from a company called Gemaco, which was statutorily obliged to pre-shuffle the cards. Unfortunately for the casino, Gemaco allegedly failed to pre-shuffle the cards, leading to deck after deck of unshuffled cards being used for hand after hand of baccarat.

The casino decided to roll the dice and sued the gamblers for the return of the winnings paid and withheld the winnings it still possessed, saying that gambling regulations require fair odds for both gambler and casino. Of course, the gamblers disagreed, arguing that the fact the casinos crapped out by not shuffling the cards is not their fault, nor does it change the nature of the odds of the game itself. In addition, the gamblers upped the ante and countersued on the basis of ethnic/racial discrimination.

Judge James Isman ultimately ruled in favor of the gamblers, ruling that he did not believe the card game was rigged and noting that the complete lack of evidence of any unlawful activity on the part of the gamblers trumped the casino’s arguments.

The Golden Nugget has threatened to appeal, but also apparently has hedged its bets and made a settlement offer to resolve the matter. Regardless, the Golden Nugget will be pursuing Gemaco for providing unshuffled cards.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

 

Church Bulletin Discount: Discrimination or Good Business?

By James W. Cushing
Special to the Legal

For those interested in how religion and the law intersect, there is a new case to watch for in Lancaster County.

Evidently, a local restaurant, Prudhomme’s Lost Cajun Kitchen, in an effort to generate some extra business, offers a 10 percent discount to anyone who brings in a current “faith bulletin” on Sunday. Although churches traditionally publish bulletins each Sunday, the restaurant, presumably to avoid claims of religious discrimination, offers the discount upon receipt of what they call a “faith” bulletin, which would include bulletins from one’s local synagogue, mosque or other house of worship, as well as a church. It should be noted that one does not actually have to attend a house of worship to secure its bulletin, nor does the restaurant conduct any sort of inquiry into one’s religious beliefs. The discount is obtained upon production of the bulletin, much like a discount being obtained upon producing a coupon.

Despite the restaurant’s efforts to avoid allegations of discrimination, it did not seem to account for a local atheist for whom securing a faith bulletin is either impossible or grievously difficult. Accordingly, about a month ago, 80-year-old John Wolff, who has never patronized the restaurant regardless of the discount at issue (he only learned about the discount through an Internet search of the restaurant after hearing good things about its food), filed a complaint with the Pennsylvania Human Relations Commission on the basis of discrimination against his nonreligion. Additionally, the Freedom From Religion Foundation, of which Wolff is a member, has issued letters and a telephone call encouraging the restaurant to discontinue is bulletin discount promotion.

In pursuit of his claims, Wolff will likely have to demonstrate how the discount is discriminatory and/or how it is different from discounts offered for children, senior citizens, ladies’ nights or the presentation of a coupon.

Although no legal decision has yet been reached – the matter is still pending before the Pennsylvania Human Relations Commission – the restaurant has not wasted any time in promoting the issue even more than before, likely to the chagrin of Wolff. In addition to continuing to offer the Sunday 10 percent discount upon presenting a faith bulletin, the restaurant is will be selling T-shirts commemorating its “legal battle” (the restaurant’s term) with Wolff.

This matter is still developing and it will be interesting to see how it will continue to unfold.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

 

Real Estate Disputes Between Church and Parish

By James W. Cushing
Special to the Legal

Over the last several years, there have been a number of cases involving the Episcopal Church and/or its dioceses and/or its parishes and disputes over ownership of church property. Specifically, as the Episcopal Church as a whole has become more theologically/doctrinally progressive, various parishes and dioceses that espouse a more conservative view have been breaking off from it and, sometimes, attempting to take their real estate with them.

There have been some local disputes in the Episcopal Church in the Montgomery County Court of Common Pleas (e.g.: Moyer v. Bennison, Case No.: 2002-07147; Moyer v. Bennison, Case No.: 2002-16553; In re the Church of the Good Shepard Rosemont, Pennsylvania, Case No.: 09-0609) regarding the property and employment dispute between the parish of Good Shepherd in Rosemont, Pa., and its priest, Father David Moyer, against the Episcopal Diocese of Pennsylvania, and in Philadelphia Court of Common Pleas regarding the property of the Church of Saint James the Less (e.g.: In re Church of Saint James the Less, 585 Pa. 428 (2005). In these matters, the court ruled in favor of the diocese under the long-standing precedent that property of a parish is ultimately owned by the hierarchical church.

Two of these recent property disputes between parishes and their dioceses have finally reached the U.S. Supreme Court, one from Georgia and another from Connecticut. The matter from Connecticut (Episcopal Church v. Gauss, Case No.: UWY-CV08-4020456-S, in Waterbury, New Haven County Court) is an interesting one, as it involves the parish of Bishop Seabury Anglican Church, which was formed before the establishment of the Episcopal Church itself. Its argument was essentially that, as it was formed before the existence of the Episcopal Church, voluntarily entered the Episcopal Church and never received contributions from either its local diocese or the national Episcopal Church, it should own the real estate the parish uses. Therefore, due to its virtual independence, it argued that it should remain independent and free to disaffiliate with its property in tow. The Connecticut courts, like the Pennsylvania court above, ruled against the parish, holding that the parish is owned by the diocese. The parish appealed to the U.S. Supreme Court and, in early June 2012, the Supreme Court declined to hear the case, cementing the lower court’s decision that Bishop Seabury Anglican Church does not own its property and cannot take it when it separates from its diocese and the Episcopal Church.

The type of litigation described above has unique circumstances elevating the dispute beyond the parish and diocese in a matter involving the Episcopal Diocese of Pittsburgh. As opposed to individual parishes seeking to disaffiliate from the Diocese of Pittsburgh, the diocese itself is seeking to separate from the Episcopal Church. Although there is significant precedent as to the relationship of a parish’s property to its diocese, the question of the relationship of a diocese’s property to the national Episcopal Church is generally a matter of first impression. As the Diocese of Pittsburgh and other dioceses (e.g.: the Diocese of San Joaquin, Calif., and the Diocese of Fort Worth, Texas) weigh their litigation options, it is clear that this area of the law is developing rapidly and it will be interesting how the courts will ultimately resolve these property disputes.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

More Work for Unemployment Compensation Lawyers in the Near Future?

By James W. Cushing
Special to the Legal

When one applies for unemployment compensation benefits, there are generally two potential opponents: the claimant’s previous employer and/or the Department of Labor itself. Obviously, an employer can oppose claims for unemployment compensation benefits on bases such as the claimant voluntarily quitting or being fired for willful misconduct. However, even if an employer takes no action to oppose a claimant, the Department of Labor can. For example, the Department of Labor can oppose a claim if, upon its review of a claimant’s application for benefits, it appears that the claimant would be ineligible under the law based on the claimant’s own representations on the application. Unfortunately for claimants, it appears that the Department of Labor will be scrutinizing their applications closer than ever in the foreseeable future.

According to a recent article in The Philadelphia Inquirer, Pennsylvania’s unemployment compensation fund was in the red by approximately $300 million in 2011. Although currently trying to borrow money to meet the current demand for benefits, legislators in Harrisburg are now searching for ways to close the gap, and due to the current political climate, raising taxes does not seem to be among the options being considered. Instead, one of the solutions that is gaining some traction is to withhold benefits from claimants who are not very “attached” to the economy. In other words, earning the bulk of one’s income over a very short period of time may cause issues with one’s eligibility, as there may be a preference for more evenly compensated employment over a longer period of time. Of course, this potential change would likely affect the underemployed more than others, as they tend to work shorter-term jobs.

Regardless of how the Pennsylvania Legislature resolves the unemployment compensation fund’s solvency problems, its desired result is to reduce the number of eligible claimants by 10 percent, or approximately 50,000 people. This will potentially affect unemployment compensation practitioners, as each denied claimant will have the right to appeal his or her denial to a hearing before a referee and beyond. Of course, claimants can be represented by an attorney to help them through such appeals and/or hearing appearances. Therefore, these new changes could also potentially increase the unemployment compensation practitioners’ caseload by up to 10 percent as more claimants may retain them to litigate the increasing number of adverse decisions against them by the Department of Labor.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

Hearing From the Deaf

By James W. Cushing
Special to the Legal

I recently discussed in this space how technology has aided attorneys in their representation of the deaf. Since that time, I have received some feedback that I think is worthwhile to share.

When it comes to language, while the deaf and hearing use the same written form of English, when “spoken,” American Sign Language employs very different forms of syntax, expression, word order and grammatical structure as compared to spoken English. As a result, sometimes, especially with deaf people older than the so-called Generation X, the norms of spoken American Sign Language become intermingled with a deaf person’s written English, often to the extent that it causes a language barrier. Therefore, practitioners must be sensitive when communicating with a deaf person and realize that sometimes written communication may not be as effective as it would be with a hearing person.

In addition to the above, a common misconception among the hearing is that the deaf can simply lip read in order to effectively communicate. Unfortunately, lip reading is a very inexact science, with many words unsuccessfully read during a typical conversation. Even if the general gist of an attorney’s point is communicated, this is insufficient, as legal advice is generally fairly complicated and requires, as much as practicable, the full understanding of the client and not simply getting the gist across. Besides, not all deaf people have the skill of lip reading; presuming that they do is simply a hearing person’s stereotype of the deaf.

The Americans with Disabilities Act prohibits an attorney from denying services because of an “absence of auxiliary aids and services.” These services include a sign language interpreter; however, a firm is not required to use an interpreter if it would result in an “undue burden.” While the cost for the interpreter is to be absorbed by the attorney, an attorney may bill for the extra time it may take to effectively communicate with a deaf client. In order to offset some of these costs, the Pennsylvania and Philadelphia bar associations established the Interpreter Access Fund. In addition, it may be possible to secure a tax credit for an attorney’s special expenditures to serve a deaf person pursuant to the Disability Access Credit.

Finally, a variety of organizations exist to help the deaf navigate the legal system and achieve justice. These organizations include the Disabilities Rights Network, the Pennsylvania School for the Deaf, the Legal Clinic for the Disabled, the National Association for the Deaf, and deaflegal.org. It is worthwhile for an attorney to investigate each of these if one intends to represent the deaf on a regular basis.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.