The ABA provides guidance on how to navigate attorney-client communication obstacles, such as language barriers
Lawyers unsure about their client’s ability to understand their case or their attorney’s advice should hire a translator to avoid possible communication pitfalls, according to the American Bar Association’s (“ABA”) newly issued Formal Opinion 500, Language Access in the Client-Lawyer Relationship.
Citing to increasing diversity in the United States, Opinion 500 addresses increasing “communication issues stemming from language differences, as well as physical disabilities,” between lawyers and their clients, and the subsequent need for lawyers to provide communication accommodations for their clients. Specifically, Opinion 500 offers guidance regarding “(1) the lawyer’s obligation to evaluate the need for a translator or interpreter or interpretive device, (2) the appropriate qualifications for a person or service providing translation or interpretive services, and (3) a lawyer’s supervisory duties when engaging or directing a translator or interpreter.” The opinion offers further guidance regarding social and cultural differences between a lawyer and a client.
According to the opinion, “[i]n situations where there is doubt about the efficacy of client-lawyer communication, that doubt should be resolved in favor of engagement of an interpreter, translator or an appropriate assistive or language translation device.” Further, the opinion stresses that a lawyer’s duties of communication and competence may require the lawyer to “secure the translation of specific written documents[.]”
The opinion outlines how a lawyer should assess a potential interpreter’s qualifications, highlights that, in addition to ensuring the translator is skilled in the required language or dialect, “the individual has the expertise needed to comprehend the legal concepts/terminology at issue so that the legal advice being provided is communicated accurately in a language or format accessible to the client.” While the opinion states that lawyers’ best way to verify a potential translator’s qualifications is to engage the services of an outside professional, it gives the green light to multilingual lawyers or nonlawyer staff facilitating translation.
Notably, the ABA stresses caution around allowing clients’ friends or family to translate or interpret on behalf of a lawyer, citing to “the substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.” The opinion also cites to lawyers’ duties under Rule 5.3, which governs a lawyer’s supervisory duties to nonlawyers working or associated with a lawyer. In a situation that requires a translator, lawyers must “communicate directions appropriate under the circumstances to give reasonable assurance that the interpreter or translator understands the lawyer’s ethical duty of confidentiality and agrees to abide by it.”
Additionally, where an unreasonably financial burden would be placed on the lawyer or client who required translation or interpretation services, the ABA recommends that the lawyer work with a lawyer who can provide translation services or decline the representation.
Finally, Opinion 500 discusses the need for lawyers to account for cultural and social differences between a lawyer and a client as possible communication barriers between them. “Client-lawyer communication is not merely a translation of words but a determination by the lawyer that the client understands the relevant law and legal, institutional, and social contexts of the communication.”
