Editor's Note
California Lawyer

January 2012

When Congress passed and President George H. W. Bush signed the Americans with Disabilities Act back in 1990, the hope was that it would make the country a much more accessible place for people with physical limitations. But by leaving the enforcement of that law largely in the hands of lawyers filing private causes of action, did the legislation also help create an environment that's unnecessarily hostile to small-business owners?

That, in essence, is the question that writer Tom McNichol wrestled with while reporting for this month's compelling cover story ("Targeting ADA Violators"). His protagonist: a 65-year-old Bay Area attorney named Thomas E. Frankovich who, on behalf of disabled clients, files scores of lawsuits every year against mom-and-pop shop owners whose facilities don't comply with ADA standards. Frankovich insists he's doing exactly what the law intended. But that hardly comforts the defendants. And given the thousands of ADA regulations that business owners must adhere to, it's easy to see how even the best intentioned can end up on Frankovich's hit list. "Consider," says McNichol, "a business owner in the Sunset District of San Francisco. He signs a lease and gets an OK from the city's building inspector. He won't even suspect that he has a problem with disability-access compliance until he's sued and ends up paying a settlement or fines."

McNichol also suggests that this litigation may be fueling a backlash of sorts against the very people the law is supposed to assist. And perhaps most perversely, when a case does settle, defendants may not have enough money left over after the legal fight to pay for correcting the ADA violations that were at issue.

Of course, the ADA has done a tremendous amount of good for millions of disabled Americans. What remains to be seen, though, is whether it can be refined to minimize the unintended consequences. One modest change worth considering: Before a suit can even be filed, give shop owners at least 90 days to correct the cited violations. That would give small businesses more leeway while still advancing the cause of disability rights.

Also in this issue, writer Lawrence Hurley contributes a piece that raised an intriguing question in our minds: What happens when the best thing a criminal defense lawyer can do for a former client is to be found guilty of having done a bad job? ("Second Guesses") This comes up most often during habeas corpus proceedings, and, says Hurley, it's bound to generate a lot of mixed emotions. "There's definitely a tension between the self-interest of the lawyer and the interest of the client in cases like these," he observes. "And when it appears that a judge is stretching the definition of 'ineffectiveness' it's bound to be at least a little upsetting for the lawyer involved."

And finally, Rich Gray, who is general counsel for Spirent Communications, a high-tech company in Silicon Valley, writes about corporate governance ("Under Every Rock") for a column we are launching this month called In House. Written both by and for in-house lawyers, it will examine the quandaries that corporate legal departments constantly wrestle with, and as Gray's piece shows, there's no shortage of issues to talk about.

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