When to Involve Legal Counsel in an ADA/WCAG Audit
For government entities, a comprehensive ADA/WCAG audit, such as one provided by our firm utilizing our Metadata Minder platform, can be very eye opening. And there is real legal liability attached once the ADA Title II compliance deadline of April 26, 2027 arrives (entities with a population of 50,000 or more, smaller population entities and special district governments have until April 26, 2028). Even a few hundred defective documents (that are inaccessible to persons with disabilities) can mean serious liability. In our audit reporting, we use $5,000 per document with a hard failure as simple napkin math. At that rate, 200 documents is $1 million in potential exposure, before attorney’s fees. We infer that figure from Title III private litigation, which covers businesses rather than government entities, so it is only a rough estimate. This is a good example of why legal involvement is wise. Our job is finding defective documents and suggesting technical solutions. Your attorney is the right person to tell you what those findings mean for your actual exposure.
This raises the question, at what point should your legal counsel become involved? Laws vary between states and Federal judicial circuits, but when you hire a non-attorney expert firm such as Rietta to conduct technical assessment work, our work can become subject to adversarial legal discovery. We will have no choice but to comply with proper legal demands. It can be the case that your attorney has other means if they are in the loop. We can be hired as an expert through their office, report our findings to them, and then you may be able to benefit from attorney-client privilege on such reporting, sometimes called a Kovel arrangement. Your mileage may vary and we cannot provide legal advice, so check with them.
Sometimes our findings may need to go up the legal chain of command anyway. For example, our document provenance reporting may indicate that business processes must be changed to stop your agency from continuously producing inaccessible documents after the enforcement date. Some changes may be beyond your team’s authority and may involve looping in the governor’s office or seeking legislative changes. Any change that needs new legislation or an appropriation will involve lawyers, so having counsel already briefed on the findings saves time you may not have.
Additionally, for many states, the compliance deadline may not leave time for your State legislature to meet, make appropriations, or fund the necessary remediation, and for that work to be carried out prior to the Federal mandate going into force. Montana, Nevada, North Dakota, and Texas hold regular legislative sessions only every other year, according to the National Conference of State Legislatures.
In short, involving counsel is up to you, but it may provide some benefits. Ultimately, we are here to provide technical excellence at your request, and we will work with you the way that you and your legal counsel determine is most practical and wise.