Top of His Game

Lawyers always need to be on top of their game, or at least appear to be. It can feel overwhelming to recognize or admit when we aren't, and even harder to reach out and get help. Welcome to Sidebar, brought to you by North Carolina's Lawyer Assistance Program, where lawyers help lawyers by sharing their experience, strength, and hope as they delve into their personal journeys of recovery.

Robynn: Hey everybody, this is Robynn Moraites, the director of the North Carolina Lawyer Assistance Program. Today I'm joined by Derek Dittmar, an attorney in Raleigh. Derek, thanks for being with us today.

Derek: This is my privilege, Robynn. Thank you so much for having me.

Robynn: So, I want to tell our listening audience about how we first met. I had written an article for the State Bar Journal on a framework for lawyer well-being. And in that article, I included an infographic. It was a fitness to practice continuum showing someone going from the top of their game down to where they're unable to practice. But I used the word "disability." And you sent me an email that it basically explained that you are a blind attorney and therefore "disabled" while also being on top of your game.

And so, we had a most interesting first initial conversation that has evolved over time. And what struck me originally about our conversation was, for me, the limits of our language, and that people don't love their spouse the same way that they love pizza, but there's only one word for it.

Then we had a further ongoing conversation in the midst of our CLE rule rewrite. All the CLE rules are being rewritten, and we were looking at rewriting the mental health and substance abuse CLE rule, and we used the word "impairment." And we had a great ongoing conversation with that, that kind of led us to having this podcast. It's very obvious to me, in our conversations that you have spent a lifetime educating people about these issues.

So, my first question to you in general is about how that came to be in your life. Was it a conscious decision or is it just, it kind of comes with the territory?

Derek: Sure. So, I want to start by saying thank you for being intentional about reaching back out to me and for having these conversations and for being open. Not just to having these conversations, but acting on them. It meant a lot and it’s not as common as you'd think, so I really want to express my appreciation to you and to the State Bar for that.

As an educator, and I use that word loosely, when I was young, I'm legally blind. I've been blind since birth. It's a genetic condition. And I have tremendous parents who have been very intentional with me and my twin sibling, since we were young, about educating others. And I was lucky enough to have parents that pushed me to be in good school districts. And we would move schools to make sure that I would be with the best resource teachers to help strengthen those skills because independence, which is the goal when you are blind, I like to say is really structured dependence in some ways because we all depend on something. There's really not any such thing as independence. We owe where we are to combinations of external and internal factors and other people, whether it's recognizable or sort of immediate or not.

So, in structured dependence, part of it is learning how to listen for, in navigation, audio crosswalks, or what questions to ask other people that are around, or how to use accessible software that's been created by other people. So, that would be the first area where I started learning that education was important, because in this idea of structured dependence or, intentional dependence, that, that we tend to call independence, it requires a lot of getting to know people very quickly and letting them know what you need, because it was impressed on me very quickly from a young age that absent my twin sibling, I would usually be the only disabled person or blind person or visibly disabled person in a room. And my experience, particularly being in the practice of law, is that I am often the first blind person that people meet.
And so, I have, at least in my mind, two options. I can learn how to educate people so that I can get what I need and what I want, or I can not learn to educate people and try to fight through it by myself. And I generally will choose the first option. The last thing I'd say about that though, is that the practice of education is a daily decision.

I know a lot of people in my community who do not like being the educator and just want to live their lives. And that's perfectly fine. There are some days that I am just not in the mood to go 10 rounds on my service animal or something like that. And, and that, you know, that is a choice that's made day to day. With education comes being willing to drop barriers and open yourself up to questions that are generally not appropriate, like your biological history or your personal choices on things like cure. And so, it's a choice that I make, but I have found that the benefits widely outweigh the negatives.

Robynn: Well, and you touched on something, I was going to ask you. Does the vigilance ever become exhausting? Do you have to pick your battles? It sounds like you said yes.

Derek: I definitely have to pick my battles and I also have to check myself. When that first article that you wrote came out, I believe it was last fall, August, 2021, Delta was coming. We were all working from home. I don't know anybody who, after the last two years of pandemic is saying that they're fine, that I would believe.

And so I need to check myself to make sure that any feelings that I feel about language or about disability relationships or about, you know, what is typically called ableism, is a genuine reaction and a reaction that I want to act on. Because if I jumped at every instance of somebody using a less than preferable word, or of touching me without consent, when they think they're guiding me, or of documents that are not accessible, I would do nothing but jump.

And so, I am lucky enough to be surrounded by people that I love, who are disabled and who understand and can be a gut check for me.

Robynn: I mean, it's just so interesting to me. I think it's hard for any of us to really imagine the kind of obstacles that you've had to overcome. Just in that last couple of sentences, you illustrated four or five things that would've never occurred to me. I appreciate that, the way you have educated me, I mean, it has exposed to me my complete cluelessness about this area. But just tell us what are some of the obstacles that you've had to overcome?

Derek: So basically speaking, I am a disabled person living in an abled bodied world.

I am living in a world that was not created for me. I am definitely working in an industry that was not created for me. And so, any building that I need to access, needs to have things, at least for me, like braille door signs, so that I can know which door or restroom or courtroom I'm going into. Any document I received needs to be accessible.

So, if you take a PDF or a document you print it and then scan it back in, and you don't run it through what's called optical character recognition. The software that I use would not know the difference between a scanned pleading and a picture of a sunset. And so, disability needs to be intentional. And when it's not, there are absolutely obstacles. And then I run into issues of ignorance. And I come at education from a place of collaboration because I know my experience, and I can't claim to speak for my entire community. But for example, Robynn, your just knowledge of this space and lawyer assistance is so tremendous.

And so, when I experience it in a manner of collaboration, working together and just putting everything I have on the table, rather than, as people in my generation consider, you know, calling out people for their ignorance and, and hitting them with it, it tends to get better results. But there are a lot of times when people will not know how to act.

You know, the example I gave earlier is when people are trying to help me, whether I need help or not, they will sometimes grab me and try to move my body. Now I'm, I'm six one. I'm not a small guy. And I have friends of mine who are smaller, friends of mine who are women or present as women, that that can be very much more scary than it is for me. But I remember very clearly, I was apple picking and taking my time, navigating down a, a flight of steps into the orchard and a gentleman thought I needed help and grabbed my hand and put it on the railing.
This was in the height of COVID. And so, we weren't supposed to be within six feet of each other. And this was the first person who had touched me outside of my family in about nine months. It was extraordinarily uncomfortable, but then, he didn't know he was doing anything wrong. And so, a lot of that becomes a struggle internally, going back to your last question of how much do I bump on and how much do I really want to acknowledge obstacles, or just try to find a way to get around them for the day.

Robynn: So interesting. You mention in one of your emails that you were told by teachers and prospective employers and peers, that you are unfit to practice law. We had a big discussion about the words impairment and disability. By the way, I want to tell the tell you and the audience that I changed that slide, the infographic I used in the framework for lawyer wellbeing was a slide that I was going to use at a national conference.

And I changed the word "disability" to be "unfit to practice." And I mentioned it at the national conference that we had had a discussion. I didn't make it the focus of my talk, but I just mentioned it in passing. But then this issue came up again in the CLE rules rewrite, where we were talking about lawyer impairment and inability to practice. And you were giving me all kinds of examples of how people could be impaired, and it has nothing to do with their ability to practice. It was just very educational. But in the course of this, you've talked about people who have directly told you that you're unfit to practice law.

And I. That's got to be really painful. Without naming names, wuld you be willing to tell us one of those stories?

Derek: Oh, sure. I, my 1L year was doing on-, I suppose, beginning of my 2L year I was doing on campus interviews, and I was applying to work for a, a group and I had my resume in front of them with law review and trial team and moot court and good class rank and all of the things you're supposed to do to be the person you're supposed to hire.

And the entire interview was, "Well, how do you read?" And "How do you write?" And "How does the dog work?" And when I, I redirected the interview and said, "Can we look at, looking at my resume, can we presume I'm competent? Just base level of competent?” The response was, "Well, no, because we need to know how you're going to do these things."

And so, it puts the onus on me as an applicant, as a young lawyer, not just to prove that I deserve to be in the room as a young lawyer. And to try to get to a point where I feel like I deserve to be in the room, cause I have so much to learn, but also to reinforce to everybody around me that I am worthy of being in the room, even with the accommodations that I need and that issues that I have and obstacles that I face are not the defining characteristic of who I am.

I did have professors, college and law school, that said, how are you going to do this job if you need accommodations? You know, I was practicing for interviews for law school. And somebody in the town where I went to college was an attorney, and the school had asked them to help me with an interview practice.

And I had reached out to them because it's a, a small town, sidewalks are not very easy to navigate. The GPS was not as good back then. And I said, would you be willing to come to the school and meet me? And I got a blistering email back on, "Absolutely not. And you need to learn to be respectful of other people's time. And you need to learn to do things by yourself. I don't care about the disability side of things. You're not gonna make it as a lawyer if you depend on other people."

Robynn: Wow. Welcome to the profession.

Derek: It's nice to be here.

Robynn: Oh my gosh. Amazing. Let's see. You have done a lot of educating and disability rights. You're not a, just to be clear, you're not a disability rights lawyer. Did you ever receive pressure to be a disability rights lawyer?

Derek: I did. I received it internally and externally. Everybody that I met, I was at a career fair in law school, and I was there with a friend of mine who was black and a friend of mine who was a woman. And we all went up to a firm that had a strong civil justice type bend to them. And they only talked about their women's rights, their disability rights. And we all looked at each other and said, we're not interested in, in pursuing those specific things. And I almost ran away from it cause I didn't just want to be the blind lawyer.

And my now wife, one day I was talking to her about this, and she said, "Well, you are a blind lawyer, and that's not going to change. And from what you described with your community, the unemployment rate, the difficulty getting off of government benefits, the low reading rates, the low access to education, the low expectations, the financial disincentives to marry."

She said, "It sounds like they need a damn good lawyer." And so, I am not a disability rights lawyer. I am a civil defense attorney with Hedrick Gardner's Raleigh office. But I am so lucky to be at a firm that respects the work I do with disability and supports me in, in speaking and in educating and in developing and in consulting and in taking those cases.

So, I do some degree of disability law. It's just not entirely my focus.

Robynn: It’s interesting. There's a lot of parallels. We host a minority outreach conference for minority lawyers. And they get a lot of pressure to serve in social justice roles and things related to race, where majority white attorneys don't face the same kind of pressures. So, it's interesting to see that you have that similar kind of pressure or pigeonholing. That kind of thing.

Derek: Well, and it's a balancing Robynn, right? Because I am blind. I do have a visible disability as well as a visual one. I am also a CIS gendered heterosexual presenting white male. And so, I recognize even in the ways that I face obstacles and the pressure that I get in the stigma and discrimination that I get, I recognize that it is nowhere near what other people are getting with other experiences.

And I do not in any way claim to say that just by being blind, it lets me understand what other people are going through or, or, or get it on any level like that, because I do have an incredible amount of privilege.

Robynn: So interesting. So, when we were talking about all of these issues in our multiple conversations, you mentioned some statistics about disabilities in the legal profession. So just take a moment and educate our audience as if it was me.

Derek: Sure. So according to 2021 data, about one in four, or 26% of Americans, or adults living in America have some sort of disability. When you think about it, disability is really the only condition that we will all face. As we get older, our eyes start to get worse.

If you break a leg, you have issues with mobility. So, 26% of adult Americans have some sort of disability. In a study out of 2020, which is the most recent that I've seen at least of the American Bar Association, less than 1% of attorneys identify as having a disability. And Robynn, when we had that conversation, you came back with the fair observation that, “Well that's identified. There are more people that have a disability and are unwilling to identify.” And I believe I said back to you, “Well, let's think about why that is.”

Robynn: Sure. Right? Absolutely. Because they don't want to face the stigma and the kind of reception that you've faced. So, if they don't have, what I now would understand is a visible disability, we keep our cards very close to our chest and we don't want anyone to know. We don't want anyone to find out whatever we might be dealing with.

Derek: Well, you look at the history of our profession, Robynn, right? Chief Justice Oliver Wendell Holmes, famous [for, “my] right to swing my fist ends where the other man's nose begins,” in Buck v Bell, said something along the lines of, "We should sterilize the disabled. Three generations of imbeciles is enough." Eugenics was very popular in the attorney movement. You look at the way that we talk about attorneys who are unfit to practice, they are disabled, right? That is there is a literal disabled list.

You look at our, our state bar and other state bars that have undergone and had to have litigation because they are asking people and demanding that to apply for the state bar, you have to disclose cognitive differences, neurodiversity, psychological disabilities, and could consider those to be a basis for questioning your fitness to practice.

There's really no. There's no reason to assume that disclosing a disability will do anything other than hurt you as an applicant, as an attorney. And at the end of the day, our obligation as a profession is to the client. And so, the attorney side of me that thinks if you have one, one side, an accommodation that somebody with a disability who's an attorney needs that could cause an issue for their client, that they don't get that accommodation.

And so, it's scary to make yourself vulnerable in a room in which you are not the most powerful or important person.

Robynn: For listeners who may not know, the litigation Derek is talking about is related to, there was a lawsuit filed in another state against the board of law examiners or board of bar examiners, because their questions on the bar application said, have you ever been diagnosed with, you know, depression or whatever, they had sort of a list of things. And the claim was brought under the ADA, that questions about diagnosis alone violated the Americans with Disabilities Act. And there was a sweeping change across the country in terms of what the questions were that were asked on the bar application.

And they changed to, because these questions went to character and fitness. These are the character and fitness questions. And so, the questions were changed to reflect problematic conduct: things like arrests, failure to pay taxes, being fired from a job. And that's more the gateway into the character and fitness issue these days than a straight diagnosis question.

And there's ongoing. There's, you know, this is still being worked out nationally. And I do think that it's probably something that eventually will make its way to the Supreme Court of the United States. I don't know exactly how it will be postured, but I, this is an area. In character and fitness, then I'm not speaking about visual disability or anything like that.

I'm talking about like mental health issues. I think it's an area of the law where we have had too much of black and white thinking, and it's not a black and white issue. I, it's not a place for all or nothing thinking, because there is a balancing of privacy concerns and diagnostic issues with also protecting the public.

And so, what has happened now is that some states are completely doing away with all character and fitness questions, even related to any kind of a conduct component. And I don't necessarily think that that's the right way to go either, because obviously in my field I've seen a lot of damage done to the public by lawyers, I was going to say, who are impaired, but what I mean is lawyers who are alcoholic or depressed and functioning at a level that is harmful to their clients.

Derek: And it's the functioning, that's the issue. You know, I usually don't jump on impairment. Disabled, I usually go with the copy paste rule, or the cut and paste rule, which is if you can cut out a type of disability or the word disability and replace it with a negative or pejorative, then it's probably being used as a synonym. And that's where it becomes an issue. But these, you know, these words, they have their definitions and they make sense. I just think, so normally, you know, impairment, I don't always bump on, but especially in the legal profession, especially with the history of, of state bars across the nation, words matter.

And if we're trying to embrace diversity and equity and inclusion and accessibility, then being very hyper aware of those words matters.

Robynn: Yes.

Derek: I think one thing that I would mention is, and this comes from a space of gratitude as well, for us having these conversations, is having people who identify as disabled in the room, because people can think of things and respond to things in a way before decisions are made and laws are drafted and it's too late.

Robynn: Right. We collaborated in the drafting of the rule before it was published, and we rewrote parts of it based on our conversations.

Derek: Exactly. And I say, all the time, I advise a lot on, on issues of digital accessibility. And I say all the time that accessibility is plumbing. It's not paint. It's got to be baked in at all levels. You know, maybe it's flour, not icing, because it's getting close to lunchtime, but it's got to be baked in at all levels because if it's not, trying to retrofit a product or a building or an idea or a law to include people with disabilities is very difficult to do and rarely successful.

The other thing that I would say is I think disability rights goes beyond a strict reading of the ADA and the ADAAA and more into a, a human rights issue because our ability to interpret these laws has always been narrow. One of the reasons that Congress had to pass the amendments in 2008 is because our Supreme Court drastically narrowed the definition of disability under the ADA.

You know, there were cases from the Supreme Court of the United States that said, if you have the ability to, I don't know if you're diabetic, but you can control through insulin, then you're not disabled. And so that had to be addressed by Congress. And so, relying on, this is a lawyer saying this, but on the law as a side of this, on the back end or fear of litigation, you know, there was 5,000 federal lawsuits on digital accessibility last year alone.

It's a rapidly growing area, the most ambulance chaser mentality for some of the plaintiffs who do this, it, it does nothing, but, but bad. Businesses are believing the, with one line of code and one button, your website will now be accessible and that's just, that's just inaccurate. And so having people in the room is vital and then viewing it as collaboration rather than as complying with simple law allows us to do something that I mentioned at the beginning, which is, I recognize that I am not in a society or I am not in a profession that was designed for people like me. But with collaboration, like we were able to do, every day we're redesigning.

Robynn: I loved your metaphor of the plumbing and the paint. It strikes me that you're an incredibly effective advocate. So…

Derek: Well, thank you.

Robynn: Thanks for being with us today.

Derek: Robynn, this has been absolutely my pleasure. Thank you so much for having me.

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