Schooled in Ethics

SCHOOLED IN ETHICS By: Judy M. Cornett

University of Tennessee College of Law

DO YOU NEED AN INTERPRETER?

On October 6, 2021, the ABA issued Formal Ethics Opinion 500, addressing the ethical responsibilities of attorneys when their communication with a client is limited by their lack of a common language or by the client’s hearing, speech, or vision disability. The role of interpreters in court proceedings is well established,1 but less attention has been given to the lawyer’s duty to provide interpreters. The ABA opinion concludes: [W]hen a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take 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 competent practice. This duty derives not only from the duty of communication under Rule 1.4, but also from the lawyer’s duty of competence under Rule 1.1.

The opinion notes that the use of “new and emerging technologies” such as “closed captioning, live transcription, screen readers, refreshable braille displays, and speech recognition software” may fulfill a lawyer’s duty to clients with hearing, speech, or vision disabilities. Technologies providing “[e] lectronic text and voice translation” may even substitute for human language translators. But the lawyer must be able to competently assess these technologies; the opinion quotes Rule 1.1, comment [8], stating that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

The first issue a lawyer must address is whether it is necessary to engage an interpreter2 or utilize assistive technology. The opinion does not address a lawyer’s duty under Rule 1.14 to clients who have a non-cognitive disability or diminished mental capacity, focusing only on clients who do not share a common language with the lawyer, or who have a hearing, speech, or vision disability. With respect to the latter group, the opinion notes that a lawyer may have a duty of accommodation under the American with Disabilities Act.3 In determining whether an interpreter is needed, the lawyer should employ a functional test. If the client “cannot participate intelligently in the representation,” or if “the lawyer is unable to ascertain the information needed to competently assist the client,” then an interpreter or the use of an assistive device is necessary. The opinion cautions that lawyers cannot fulfill their ethical duties by shifting the responsibility onto their clients by, for example, instructing the client to get the lawyer’s written communications translated.

The opinion notes that a human interpreter must be (1) “qualified to serve as an interpreter or translator in the language or mode required,” (2) “familiar with and able to explain the law and legal concepts in that language or mode,” and (3) “free of any personal or other potentially conflicting interest that would create a risk of bias or prevent the individual from providing detached and impartial interpretive or translation services.” Although a professional interpreter is the safest choice, a lawyer may employ another lawyer or lay staff member who has the necessary qualifications. The opinion urges caution in using a client’s friend or family member as an interpreter since “an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.”

The lawyer must also be sensitive to “social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation.” These differences may arise from factors such as the client’s “ethnicity, religion, and national origin.” The lawyer must not assume that an interpreter can necessarily mediate these cultural differences. The duty of communication includes making sure that “the client understands the relevant law and legal, institutional, and social contexts of the communication.” Doing so may require the lawyer to “explain[] the matter in multiple ways,” to spend more time meeting with the client, to “ask confirming questions,” and to conduct research or consult experts to reduce any cultural barriers to client understanding. When a lawyer engages an interpreter, Rule 5.3 requires the lawyer to “make reasonable efforts to ensure that the interpretive or translation services are provided in a manner that is compatible with the lawyer’s ethical obligations, particularly the Rule 1.6 duty of confidentiality.” The opinion notes that the contract with the interpreter “should address the protection of client information,” and the lawyer should also communicate the duty of confidentiality directly to the interpreter.

What if appropriate interpreter services are unavailable?4 Or what if the client cannot afford an interpreter? The opinion advises that in either case, the lawyer should either decline the representation, withdraw from the representation, or associate a lawyer who can provide appropriate interpreter services.

In practical terms, the ABA opinion requires the lawyer to exercise informed judgment about when a human interpreter or assistive technology is needed. In some cases, of course, it will be an easy call. But in other cases, the lawyer will have to make delicate judgments at every stage of the representation to make sure the client and lawyer can communicate effectively. One local resource for language translation is The Foreign Language Academy, https://foreignlanguageacademy.org/. By remaining alert to communication difficulties resulting from language differences or a client’s hearing, speech, or vision disability, a lawyer can fulfill the ethical duties of competence and communication.

1 See Tenn. Sup. Ct. R. 41, 42. 2 Throughout this article, the term “interpreter” includes translator. 3 The opinion cites Alex B. Long, Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism, 47 U.C. Davis L. Rev. 1753 (2014). 4 One local resource for language translation is The Foreign Language Academy, https://foreignlanguageacademy.org/. The Administrative Office of the Courts also maintains a searchable database of certified and registered court interpreters, https://www.tncourts.gov/programs/court-interpreters/find-court-interpreter.