Risk Watch Culturally and Linguistically Diverse Clients: Ongoing Challenges for Lawyers

Culturally and linguistically diverse clients: Ongoing challenges for lawyers (Part 1)

GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

Language, and the understanding of language by clients, are critically important aspects of the practice of the law. Legal professional indemnity insurers across Australia have reported an increase in claims resulting from language issues. This is hardly surprising, given the diverse multi-cultural make-up of modern Australian society - the Court forms under the Uniform Civil Rules (Forms 31-33) now provide for multi-lingual Notices of Claim covering 11 different languages, including English. Somewhat surprisingly, (apart from English) the only European languages included are Albanian and Greek - Italian, Spanish, German, French, Polish, Russian etc. do not have their own Forms.

As is stated in the Preamble to the Courts Administration Authority’s Interpreter Protocols:

“Fundamental principles of fairness and equity require that no person appearing before a Court should be disadvantaged in the proceedings or in understanding the procedures because of a language or other communication barrier.”

The steps necessary to ensure that disadvantage is not visited upon clients who do not fully understand English present a number of challenges for lawyers.

The Protocols provide that legal practitioners appearing in proceedings when an interpreter is assisting should adjust their advocacy accordingly. Some of the suggestions which are made are as follows: • short sentences are preferable and complex questions should be avoided • time must be adjusted to take account of the time needed for interpreting • the interpreter should be able to finish the particular interpretation. Do not cut the interpreter off • avoid the use of negative assertions in questions as they are frequently a source of miscommunication • minimise the use of innuendo, implied accusations and figurative language as these linguistic features are difficult to interpret accurately • when words have multiple meanings, be explicit about which meaning is to be relied upon.

The Protocols provide that an interpreter should be engaged in any proceedings where a party or witness who speaks limited English, has difficulty communicating in English or is hearing impaired in a courtroom context is required to appear in the court or has any other business before the court. It can be seen that this is a fairly low threshold to meet before an interpreter is required.

It will generally be up to the legal practitioner acting for a client or relying upon a witness who needs assistance from an interpreter to arrange that interpreter. This obligation is not something to take lightly. In Zhou v Zong [2018] FCCA 3393 the Court ordered that the costs thrown away by reason of an adjournment of a trial be paid by the lawyer personally where the adjournment was necessary in part because the lawyer had not arranged for an interpreter for his client’s evidence to be present at the commencement of the trial.

It should not be supposed that problems of language are necessarily solved by the lawyer involved being able to speak the language in question, and especially not where court proceedings are concerned. In Rogic v Samaan [2018] NSWSC 1464, Kunc J made a number of observations on taking affidavits from culturally and linguistically diverse witnesses. That case involved a number of witnesses who spoke mainly Serbian. Their actual evidence in court was provided through a NAATI accredited interpreter however their affidavit evidence (being their evidence in chief at the trial) was prepared by the solicitor for the plaintiff. The solicitor spoke both Serbian and English. He took instructions from the witnesses in Serbian and then translated those instructions himself into English and prepared the affidavits in English. He then read the affidavit back to the relevant witnesses in English and translated it back to them in Serbian to obtain their assent to its contents. His Honour said:

“…I am not suggesting [the] solicitor acted unethically. I assume that he did not retain a qualified, independent interpreter because he was trying to save costs by taking advantage of the fact that he spoke Serbian. Nevertheless, what was done is not a practice which is likely to maximise the prospects of justice being done and should be avoided when the witness is a culturally and linguistically diverse (CALD) person unless there is no practical alternative (for example, due to lack of communication facilities in a remote region, or urgency).”

Kunc J said there are at least two reasons why a bilingual solicitor should not interpret the deponent’s evidence to produce an affidavit in English:

“157. First, ‘research demonstrates the superior performance of trained interpreters over untrained bilinguals.’ (citation omitted) 158. Being bilingual is not the same thing as being an interpreter (spoken words) or

translator (documents). Interpreting and translating are highly skilled occupations, often now undertaken with the benefit of specialist tertiary study. Furthermore, reputable interpreters adhere to a professional code of ethics, which emphasises the importance of professional competence, accuracy and independence. 159. Second, assuming the role of interpreter or translator could put the solicitor in an invidious professional position. This is also why even a solicitor who is also a professional interpreter—if there are any—should not do so in her or his own cases. Difficulties may arise if the accuracy of the interpretation is questioned, raising the possibility of the solicitor having to give evidence. Allegations of unconscious or even conscious bias could be raised.”

Whilst being a multi-lingual solicitor is unlikely to be a disadvantage it will not necessarily solve all the problems with language, particularly where documents for use in Court are concerned. Assistance from professional interpreters (even with the added cost and delay occasioned by their use) should be sought when appropriate.

Of course, it is not just court proceedings which raise issues where language might be a difficulty. Language problems may arise in all areas of legal practice—commercial transactions and wills and estates are just two obvious examples. The February, 2022 Riskwatch article will deal with some of the issues that arise from CALD clients in nonlitigious matters.

In the meantime, there is a checklist for working with culturally and linguistically diverse clients, and accompanying Acknowledgement to Interpreters, available to practitioners insured with the SA Professional Indemnity Insurance Scheme in the General Law document package in the Risk Management section of the Society’s website (requires login).

Legal aid opens new office at Whyalla

The Legal Services Commission has moved to a new office location in Whyalla to boost the delivery of its services in the Eyre Peninsula region.

The office is located at 17A Forsyth Street, Whyalla. The Commission’s Whyalla office phone numbers and email addresses have not changed.

“Our new Whyalla office is more than just a building,” says the Commission’s Director, Gabrielle Canny. “It’s a demonstration of our continuing commitment to the people in this important part of SA.

“We have had an office in Whyalla since 1985 and we know it can be particularly tough for people dealing with legal problems in regional areas. They have fewer legal services to choose from, reduced access to courts and tribunals, plus increased travel expenses.

“Many of our enquiries in this region relate to family law problems,” says Ms Canny. “Those enquiries are about the care of children, property disputes, intervention orders and divorce proceedings.

“At our Whyalla office we also provide a mediation service that helps separated parents to reach out-of-court agreements regarding the care of their children and the division of property. In these negotiations, each parent is represented by a lawyer.

“This Family Dispute Resolution mediation program is very successful. An agreement is reached by four out of every five couples who take part in this program.

“We also handle a number of enquiries in the Whyalla region relating to consumer issues, debt, employment laws, traffic matters, Wills, criminal cases and landlord disputes.”

In 2019, the Commission moved to new and improved premises at Port Augusta to boost its assistance to people in SA’s Upper Spencer Gulf. B December 2021 THE BULLETIN 29