New ABA ethics opinion clarifies obligations for language access in lawyer-client relationships

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Attorneys often must take affirmative steps to ensure that they can communicate effectively with clients with limited English proficiency or with those with noncognitive physical disabilities, such as a hearing or a speech impairment.

This may require the lawyers to engage an interpreter, translator or other assistive or language-translation technology, according to an ethics opinion released Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility.

An Oct. 6 ABA press release is here.

Lawyers must take these steps to comply with their ethical responsibilities under Model Rule 1.1 of the ABA Model Rules of Professional Conduct, which deals with the duty of competency, and Model Rule 1.4, which details the duty of communication.

“If a lawyer does not communicate with a client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation necessary to provide the client with competent representation,” according to Formal Opinion 500. Furthermore, attorneys “must take measures to establish a reasonably effective mode of communication.”

The bulk of the opinion explains that when confronted with clients with language barriers, lawyers must obtain a qualified, impartial interpreter or translator who can understood and explain the law and legal concepts in the language of the clients.

Lawyers may use “a multilingual lawyer or nonlawyer staff member within the firm to facilitate communication with a client.”

The opinion adds that sometimes a friend or family member of the clients may function as the interpreter. But in these instances, lawyers must take particular care to ensure that such a friend or family member is not biased by a personal interest.

If lawyers cannot obtain such an interpreter or translator without incurring “an unreasonable financial burden” on the attorneys or the clients, then the attorneys should either decline or withdraw from representation.

Lawyers who use such interpreters or translators must comply with their ethical obligations of Model Rule 5.3, which explains an attorney’s responsibilities over nonlawyer staff. For example, lawyers must ensure that the conduct of the interpreter is compatible with the professional responsibilities of the lawyers. Furthermore, the attorneys must ensure that the interpreter does not violate the duty of confidentiality owed to a client under Model Rule 1.6.

Finally, the opinion explains that attorneys must be cognizant of “social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation.” The lawyers cannot assume that an interpreter or translator understands these social and cultural differences simply because the person can interpret and knows the client’s language.

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