October 2021 | Lawyer’s Duties of Communication and Competence Exists when the Lawyer does not share a Common Language with the Client
Since the United States population has become more diverse and multicultural, communication issues between Lawyers and Clients are dramatically increasing. The American Bar Association (ABA) recently issued a new Formal Opinion addressing language and disability access issues in lawyer-client communications. ABA Formal Opinion 500 (October 6, 2021). It clarifies a lawyer’s duties when communicating with a client who speaks a different language or has a non-cognitive physical condition such as a hearing, speech, or vision disability.
Lawyers’ Duty to Communicate in General
Lawyers have a duty to communicate with their clients in a manner that is “reasonably understandable” to the clients. This duty is codified in the ABA Model Rules of Professional Conduct, as well as the California Rules of Professional Conduct. (See ABA Model Rule 1.4; see also CRPC 1.4). Clients need to know what is happening in their cases so that they can participate in the representation. Unfortunately, communication issues have been a frequent reason for disciplinary complaints, so the ABA and states have attempted to clarify lawyers’ obligations in that regard.
The duty of communication requires lawyers to (1) to promptly inform the client of any decision when the client’s informed consent is required; (2) to reasonably consult with the client about the objectives of the representation; (3) to keep the client reasonably informed about significant developments; (4) to promptly comply with the client’s reasonable requests for information; and (5) to advise the client about any relevant limitation on the lawyer’s conduct. (CRPC 1.4) Critically, the lawyer’s duty to advise means informing the client about all necessary information so the client can make informed decisions. If the lawyer and client have communication difficulties because they do not share a language or because of a non-cognitive physical condition, the lawyer must take affirmative steps to ensure the lawyer and client can communicate effectively. This is part of the lawyer’s duty of competence. (CRPC 1.1).
Need for a Translator or Assistive Technologies
Formal Opinion 500 explains the steps that a lawyer must take if it appears that the lawyer and client cannot communicate effectively due to language or access issues. Typically, the lawyer and client can decide amongst themselves how to address a language barrier or communication issue. However, the lawyer cannot leave all the interpretation work to the client, including simply sending a non-English-reading client a settlement agreement in English and failing to provide a translation or interpreter. Instead, the lawyer should make the client aware that they need an interpreter or translator, and then work to secure those necessary services. If the lawyer has any doubt that communication with a client is compromised because of language barriers, the lawyer should err on the side of using a translator, interpreter, or assistive technology.
ABA 500 discusses three different types of services that the lawyer and client might need. An interpreter converts spoken words from one language to another. A translator converts written words from one language to another. Assistive technology can help people communicate as well. This technology includes closed captioning, live transcription, screen readers, refreshable braille displays, speech recognition software, and other electronic text and voice translation software and devices. The lawyer and client can decide which services are appropriate and how to use them.
If a lawyer and client use an interpreter or translator, that person must (1) be qualified to interpret or translate in the language or method needed, (2) be familiar with and able to explain legal concepts in that language, and (3) be free of conflicts of interest or bias that might prevent him or her from providing impartial services. Lawyers can verify these skills by using outside professional translators or interpreters.
While the opinion does not prohibit use of nonprofessionals, it does caution lawyers to evaluate their capabilities and potential biases carefully. A client may feel more comfortable having a friend or relative interpret, but this raises an issue of potential bias by the friend or relative’s interest in the outcome of the representation. If another lawyer or paraprofessional interprets, the lawyer should similarly evaluate whether he or she is qualified.
Lawyers have similar supervisory obligations in this context as when they are supervising other lawyers, paraprofessionals, or office staff. When using outside translators or interpreters, lawyers must ensure that these professionals’ conduct complies with a lawyer’s ethical obligations. For example, confidential client information must be protected.
Under this Opinion, a lawyer should be prepared to assume the cost of any interpretive, translator, or assistive services for a client. In the event of a client’s disability, the ADA generally obligates the lawyer to bear the cost of procuring such services that are necessary to accommodate a disability. If doing so would place an unreasonable financial burden on the lawyer, he or she should either withdraw from the representation or associate with another lawyer who can help shoulder the burden (such as a multilingual lawyer). Certainly, the lawyer should discuss with the client at the outset of representation the responsibility for that expense in the initial fee agreement. In an emergency, when action is needed to prevent harm to the client, the lawyer should take steps to prevent this harm. Given the shortage of culturally diverse lawyers in our communities, this part of the opinion may lead to even a greater access to justice gap.
Finally, Formal Opinion 500 discusses the need for understanding of cultural and social differences in the lawyer-client relationship. If the lawyer and client do not speak the same language or if the client has a physical disability which interferes with communication, the lawyer’s ability to provide competent representation may be undermined. Lawyers should take care to observe these cultural and social differences and adapt to them, such as by asking questions in a different way or explaining a concept in multiple ways. They also may want to spend additional time in meetings to ensure exchange of information, and they can do additional research or consult others about cultural or social differences to assist with communication. Lawyers should not assume that translators understand these differences. Effective representation requires that the client and lawyer understand each other.
The lawyer’s duties of communication and competence are critical for a satisfactory attorney-client relationship. ABA Formal Opinion 500 addresses significant language and disability access issues during client representation. These issues go to the heart of lawyer-client communication, because a lawyer cannot effectively represent a client if they do not understand each other. The opinion explains how a lawyer should work with a client who speaks a different language or has a physical condition by engaging appropriate interpretive, translation, or assistive technology services.
**In October 2021 Karen Goodman was inducted as a Fellow in the American College of Trial Lawyers in a ceremony at the ACTL’s annual meeting in Chicago.