I used to serve as an acting judge in Chittenden Small Claims Court. I once presided over a landlord-tenant dispute. The tenant was represented, the landlord was not. Neither party’s first language was English. The tenant was fluent in English and able to communicate clearly with counsel and me. The landlord was not at all comfortable with English and I did not know a single word of the party’s shared native language. So, I had an interpreter present.
The hearing went fine. Still, it left me wondering.
As bar counsel, I’m quite familiar with the duties of competence and communication. Each is one of my 7 Cs of Legal Ethics. After the small claims hearing, I was struck by the difficulty that the landlord – and many others involved with the judicial system – must have in finding a lawyer who can help them to understand their legal matters. That is, a lawyer who can competently communicate with them.
Earlier this week, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 500: Language Access in the Client-Lawyer Relationship. The ABA Journal reported the opinion here.
The opening lines of the synopsis provide the upshot:
- “Communication between lawyer a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and client do not share a common language, or owing to a client’s non-cognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication . . . and competence . . . are undiminished.”
Next, the body of the opinion starts with the “baseline” proposition that:
- “when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take reasonable steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competence practice.”
From there, the opinion provides guidance on:
- a lawyer’s obligation to assess whether a translator or interpreter or interpretive device is necessary;
- the qualifications to look for (and to avoid) in a person or service that translates or interprets; and,
- a lawyer’s obligations when supervising a translator or interpreter.
I’m not going to go through the whole opinion here. There’s no substitute for reading it.[i]
In the end, the duties of competence and communication require a lawyer to be able to deliver and receive information to and from the client.
As always, be careful out there.
[i] I will stress one point: be careful in selecting an interpreter. From inquires I’ve received, my sense is that many lawyers use a client’s friend or family member. That’s understandable and not necessarily inappropriate. Still, echoing this opinion issued by the New Hampshire Bar Association in 2010, the new ABA opinion warns that there is “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.”