IN THE PROFESSION
Relationship issued by the American Bar Association ’ s Standing Committee on Ethics and Professional Responsibility issued on October 6 , 2021 (“ Opinion ”), addresses an attorney ’ s duties and obligations in this situation .
While the rules set forth by the Opinion seek to guarantee the effective representation and communication of and with a client , it could have a chilling effect on the access to justice as some non-native English speakers may have to climb a steeper hill to find a lawyer .
In essence , under the Opinion , attorneys must assure that they understand the elements of the case and questions from their client and are able to explain the issues and keep the client informed of the incidents of the case .
The communication between lawyer and client is necessary to secure the effective representation of the client . If the communication is hindered because the parties do not speak the same language , or at least not the level to sustain an effective conversation , the lawyer is obligated to take additional measures to discharge their ethical obligations towards the client . These additional measures include employing an interpreter or translator or using any tools that would assist with communication . In the end , the lawyer must make certain that the client may “ intelligently participate in decisions relating to the representation ” and the lawyer “ is procuring adequate information from the client to meet the standards of competent practice .” Id . at 3 .
The lawyer ’ s duty toward the client stems from ABA Model Rules of Professional Conduct 1.1 regarding competence1 and 1.4 covering communications with clients . 2
The Need for a Translator , Interpreter or Service
Effective attorney-client communication includes the attorney delivering the proper explanation of the issues necessary for the client to provide informed consent about the decisions in the case , the attorney ’ s communication to keep the client reasonably informed about the issues affecting the outcome of the matter , the attorney ’ s relay of requests for information made by the other party and communications to inform the client about any limitations regarding the representation . Effective communication between the attorney and the client is necessary to provide the client with a competent representation . It guarantees that the lawyer understands the elements of the case to zealously represent the interests of the client and also inform the client of the incidents and issues of the case so the client may provide their informed consent .
If any issues impede this level of communication , the attorney is required to look for alternatives , including using an interpreter or translator , or other tools including text-to-text , text-to-speech or speechto-speech translation software .
If the attorney cannot communicate with the client in the client ’ s language or the client ’ s knowledge of the English language is limited , the attorney should consider alternatives to ensure that an effective communication can be established . The client should be consulted about the decision whether a translator , interpreter or other technology should be use . The cost of the translation , interpretation or similar services should be addressed as part of the initial fee arrangement between the attorney and the client .
Once it has been acknowledged that there are communication issues , the lawyer must communicate with the client in the language the client understands and may not communicate in English and request that the client translates the communication . In this regard , the lawyer has “ an affirmative responsibility to ensure the client understands the lawyer ’ s communications and that the lawyer understands the client ’ s communication .” Id . at 6 .
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If a translator or interpreter alternative is chosen , the translator or interpreter must be qualified to explain the law and the legal concepts to the client and must be free of any bias and conflicts of interest that may ,
“ Aside from a possible language barrier , the lawyer must be aware of cultural and social differences that may impact the communication with the client .”
in any way , impair his or her ability to provide impartial interpretative or translation services . The lawyer must assure the interpreter or translator is both proficient in the foreign language and has expertise in the translation or interpretation of legal terms and concepts . Ideally a thirdparty vendor engaged in legal translation and interpretation services should be hired but a bilingual member of the firm or a non-attorney employee of the firm may function as such , provided it has the understanding of the legal terms and issues of the case . A friend or family member of the client may also serve as an interpreter or translator provided they are proficient and do not have a personal interest or bias in the outcome of the case .
If the use of an interpreter or translator would place an unreasonable financial burden on the lawyer or the client , the lawyer should decline or withdraw from representing the client or consider associating with a bilingual lawyer to
( continued on page 23 )
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