Lawyers wrote the Americans with Disabilities Act, so it's no surprise that would-be lawyers constantly try to raise the bar on accommodations within the legal profession. Case in point, Shannon Kelly, a 2003 graduate of Barry University School of Law in Orlando, Florida. Last year Kelly took the bar exam in West Virginia. In response to his stated disability, the Board printed his exam in eighteen point type, let him take the test in a private room and allowed him an extra day to finish. Nonetheless, Kelly failed the test.
He wants to try again, but this time he wants an additional accommodation. He has sued to be given all of the above accommodations, plus an additional day to finish the test. While in law school, his Barry U professors gave him twice the normal time to finish his exams. Twice the normal time for the West Virginia bar would be four days.
Kelly's lawyer, Edward McDevitt, says that the Board has violated Kelly's rights as a disabled person under the ADA.
"He has invested enormous time, money and energy to reach the threshold of the profession," explained McDevitt. "But he has severe deficits in processing speed, cognitive fluency and rapid naming."
Kelly's suit raises some interesting issues. The accommodations he requires for the exam might well be needed for his practice: briefs written in 18 point type; extension of the normal deadlines for filing court papers; perhaps even extra time to present his arguments. The fundamental question is whether Kelly can perform the essential functions of the legal profession. Most lawyers have to be able to read small type, respond to numerous deadlines and present their cases under extreme pressure. As a reward for their proficiency, they are (often) paid substantial hourly fees. Would Kelly command the same hourly rates, despite the fact that it might take him twice as long to complete the work? Would it be ethical to charge clients double for Kelly's work? (On second thought, the subject being lawyers, let's keep ethics off the table.)
If Kelly succeeds in passing the bar, I would recommend that he seek work as a government lawyer. He could take his sweet time finishing a task; he could let all his phone calls drift into his voicemail and call back when he felt like it; and he'd draw a salary, so his relative lack of output would be less of an issue. Heck, if he can pass the (illegal) political litmus test recently in vogue, he might be an ideal candidate for the Department of Justice.
At this point the case is in the hands of U.S. District Judge David Faber, who has temporarily denied Kelly's demand for enhanced accommodation. Judge Faber will soon make a final disposition on the lawsuit. When Faber finishes this case, he might be ready to tackle reasonable accommodation for surgeons. I'm really looking forward to that one.
Follow up Note (8/9/08)
In re-reading my suggestion that Kelly become a government lawyer, I unintentionally crossed the line between well-intentioned satire and bad taste. Most government lawyers in my personal experience are extremely knowledgeable, quick to answer the phones and highly responsive to public inquiry. What I meant to say was that Kelly might find an appropriate place among the highly partisan, marginally skilled ideologues hired by the Department of Justice in the last five or so years.
As should be evident by now, I try to hold all professions accountable, including my own (consulting). So in the spirit of fair play, here are some tasteless jokes about consultants. Enjoy.