Last month, the ABA issued Formal Opinion 500, “Language Access in the Client-Lawyer Relationship,” offering guidance for lawyers with clients with communication differences.
Sixty-seven million Americans speak a primary language other than English and disabilities affecting communication are more common than many realize (and increase with age).
For lawyers working with clients who speak a different language or have a non-cognitive physical condition such as a hearing, speech, or vision disability, the ABA Standing Committee on Ethics and Professional Responsibility released its latest formal ethics opinion in October 2021, discussing ethical duties related to communication (under Model Rule 1.4) and competence (under Model Rule 1.1). Lawyers need to identify when language access is affecting communication and ensure “the client understands the legal significance of the translated or interpreted communications,” with awareness of potential cultural differences and social assumptions that may impact meaning. Lawyers also need to ensure that non-lawyer services are free of potential conflicts of interest and satisfy professional obligations. As summarized by ABA News:
The opinion outlines steps lawyers should consider when faced with these types of communication challenges, including the use of an impartial, qualified interpreter or translator capable of explaining legal concepts. It also makes clear that “it is the lawyer’s affirmative responsibility” to ensure the client understands the lawyer’s communications, and that the lawyer understands the client’s communications.
“Communication between a lawyer and a client is both the means by which a client is provided with the advice and explanations needed to make informed decisions, and the vehicle through which the lawyer obtains information required to address the client’s legal matter appropriately,” the opinion said.
When the lawyer seeks the services of an interpreter or translator due to either language proficiency or noncognitive disability, the lawyer must “make reasonable efforts” to ensure that client confidentiality is protected.
Additional steps specific to translation are outlined ABA Journal:
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.
Key steps for lawyers with clients facing language-access barriers are highlighted in this Holland & Knight article. Further communication considerations for clients with disabilities are covered by ADA expert William D. Goren, JD, LLM here on his blog, Understanding the ADA.
The ABA’s opinions are persuasive authority but not binding on state authority. The Massachusetts BBO hasn’t published any related guidance — find their articles here. For additional clarity, you can always reach their Ethics Hotline on Monday, Wednesday, or Friday from 2pm – 4pm, at (617) 728-8750.