[blindLaw] Accessibility law firm lawsuits resources

[Al Elia]

First, I am not aware of any lawsuits against law firms that specifically involve blind clients/testers. I know there have been suits involving wheelchair-using clients/testers.

Second, it is a violation of most, if not all jurisdictions’   rules of professional conduct  for a lawyer to share a fee with  a non-lawyer, including with a client. In that regard, your hypo could be considered “unethical.” However, a clever lawyer could likely  construct a settlement that avoided such  ethical pitfalls. The danger to such an attorney and client would be in going to trial, as the client would only be entitled to the jury award, and in many jurisdictions without state damages for violations, the client would not be entitled to a red cent because Title III of the ADA (which covers websites in some circuits) does not provide for damages.

Of course, if no damages are available under any causes of action, and there are no state claims or the state in question does not provide for catalyst fees, then the business/website can moot the case entirely by simply fixing the access barriers.

Take California: It offers damages under state law for ADA violations, and it offers catalyst fees, but since it is in the 9th Circuit websites are not covered by the ADA unless they have a nexus to a physical location that is covered by the ADA. So, an inaccessible web store is likely immune from suit under the ADA  in California, and likely under any suit in California unless California state courts have held that online-only websites are covered under  state law.

Take New HAmpshire: It is in the 1st Circuit, so online-only websites are covered by the ADA. NH law does provide for damages for discrimination in places of public accommodations, but presuming that state law  does not cover websites (I haven’t done case research but the state’s statutory definition appears to only cover physical locations), a website operator could moot any case alleging violations of the ADA by simply fixing their website’s access barriers. Since federal law does not provide for catalyst fees, the mooted case would not allow the plaintiff’s attorneys to petition for and collect fees.

So again, while your hypo could involve “unethical” behavior by attorneys, it is unlikely to actually happen in the real world unless the putative website operator really wants to pay off the complaining lawyer and plaintiff instead of fixing their website. The Website operator and its attorneys can also always lodge a complaint with the bar authorities if they have credible reasons to believe that the plaintiff attorneys are acting “unethically” (i.e., violating rules of professional conduct).

Yours,

/Æ



On 8 Sep 2023, at 16:09, S wrote:

> Max, you listed two choices for the business - negotiate a settlement or go to court.  But you missed the most obvious choice the business has - make their facilities, websites, apps, etc. accessible so that people with disabilities have equal access.  That negates the lawsuit.  These laws have existed for decades.  It shouldn't have to take a lawsuit but how many businesses would correct their ADA violations without one?  The plaintiff may or may not "intend to purchase" but an inaccessible situation means others with a similar disability, who do intend to purchase, can't purchase either.  This opportunity for a lawsuit was created by the violator, not the law firm.
>
>> Date: Fri, 8 Sep 2023 02:28:59 -0700
>> From: Max Smith <maxs71055 at gmail.com>
>> To: Blind Law Mailing List <blindlaw at nfbnet.org>
>> Subject: Re: [blindLaw] Accessibility law firm lawsuits resources
>>
>>
>> I believe this practice is unethical because the individuals they employ do not have any intention of making a purchase; instead, their sole aim is to generate profit for themselves and the law firm by threatening to file lawsuits against businesses. This forces businesses into a situation where they can either choose to pay the law firm a significantly smaller amount to make the threat go away, as opposed to the potentially higher costs they would incur if they were to be sued by the law firm.
>>
>>
>>> On Sep 3, 2023, at 12:46 PM, Rod Alcidonis via BlindLaw <blindlaw at nfbnet.org> wrote:
>>>
>>> ?Testing to identify potential civil rights violation is not new. This is a practice regularly employed in housing discrimination investigations. As previously suggested, this is definitely a good topic for a law school paper but as a practical matter, I don't see anything unethical about this. It is one of the investigative tactics that can be used to uncover violations.
>>>
>>>
>>> Rod,
>>>
>>>
>>> -----Original Message-----
>>> From: BlindLaw <blindlaw-bounces at nfbnet.org> On Behalf Of Sanho Steele-Louchart via BlindLaw
>>> Sent: Sunday, September 3, 2023 2:58 PM
>>> To: Blind Law Mailing List <blindlaw at nfbnet.org>
>>> Cc: Sanho Steele-Louchart <sanho817 at gmail.com>
>>> Subject: Re: [blindLaw] Accessibility law firm lawsuits resources
>>>
>>> Max,
>>>
>>> Is it your belief that law firms shouldn't be allowed to collect attorneys' fees in cases where they had a blind tester test a website to begin with?
>>>
>>> Sanho
>>>
>>>> On Sep 3, 2023, at 12:28 PM, Gerard Sadlier via BlindLaw <blindlaw at nfbnet.org> wrote:
>>>>
>>>> ?Just for the sake of the argument, why would this be unethical,
>>>> assuming the websites in question really are inaccessible, contrary to
>>>> the law?
>>>>
>>>> Kind regards
>>>>
>>>> Ger
>>>>
>>>>>> On 9/3/23, Max Smith via BlindLaw <blindlaw at nfbnet.org> wrote:
>>>>> Hello Dennis,
>>>>> I am a current law student with a strong interest in web
>>>>> accessibility. I am reaching out because I believe it is highly
>>>>> unethical for these law firms to engage in such practices.
>>>>>
>>>>>
>>>>>> On Sep 1, 2023, at 10:27 AM, MIKE MCGLASHON via BlindLaw
>>>>>> <blindlaw at nfbnet.org> wrote:
>>>>>>
>>>>>> ?It sounds like a topic for a final law school paper
>>>>>>
>>>>>>
>>>>>> Please advise as you like.
>>>>>>
>>>>>> Mike M.
>>>>>>
>>>>>> Mike mcglashon
>>>>>> Email: Michael.mcglashon at comcast.net
>>>>>> Ph: 618 783 9331
>>>>>>
>>>>>> -----Original Message-----
>>>>>> From: BlindLaw <blindlaw-bounces at nfbnet.org> On Behalf Of Dennis
>>>>>> Clark via BlindLaw
>>>>>> Sent: Friday, September 1, 2023 12:18 PM
>>>>>> To: Max Smith via BlindLaw <blindlaw at nfbnet.org>
>>>>>> Cc: Dennis Clark <dennis at dgclark.net>
>>>>>> Subject: Re: [blindLaw] Accessibility law firm lawsuits resources
>>>>>>
>>>>>> Hello Max,
>>>>>>
>>>>>> Are you a lawyer, or a current law student? Once I know this I can
>>>>>> better provide an answer that may make sense. I'm asking because
>>>>>> your question as presented is somewhat unusual, and kind of reads
>>>>>> like a possible law school exam question.
>>>>>>
>>>>>> All the best,
>>>>>>
>>>>>> Dennis
>>>>>>
>>>>>>
>>>>>>> On 9/1/2023 2:25 AM, Max Smith via BlindLaw wrote:
>>>>>>> Hello everyone,
>>>>>>>
>>>>>>> I'm curious if anyone is aware of any instances where charges have
>>>>>>> been
>>>>>> brought against law firms that hire visually impaired or disabled
>>>>>> individuals to identify inaccessible websites. These individuals are
>>>>>> subsequently utilized to initiate lawsuits against businesses or
>>>>>> companies that are considered inaccessible. The testers are
>>>>>> compensated when the law firm settles the lawsuits. Essentially,
>>>>>> this could be perceived as a form of extortion.
>>>>>>> If anyone has a source they could point me to, I would greatly
>>>>>>> appreciate
>>>>>> the opportunity to delve deeper into this topic.
>>>>>>