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Representing Clients with Limited English Proficiency

By Lisa R. Bliss, Litigation News Associate Editor – October 13, 2010

Attorneys must be mindful of their ethical obligations to effectively and confidentially communicate with their clients despite any language barrier. Changing demographics in the United States and expanding ties between foreign and domestic corporations are increasing the number of attorneys who need to provide advice to clients with limited English proficiency.


“The Census Bureau is predicting that the United States will become a minority-majority country by 2042 or 2048,” says Peter F. Asaad, Washington, DC, cochair of the ABA Section of Litigation’s Immigration Litigation Committee. In other words, minorities will likely make up the majority of the U.S. population before the middle of this century. “Our ability to serve that population has to take seriously the need to utilize a competent interpreter as part of maintaining equal access to justice both from an effective representation and confidential communication standpoint.”


Reacting to the Need for Effective Communication
A few states have already addressed the use of interpreters in attorney-client communications. For example, an ethics opinion [PDF] issued by the New Hampshire Bar Association states that an attorney may ethically represent a client who does not speak the same language so long as the attorney uses a qualified, impartial interpreter to conduct adequate communications with the client, and takes appropriate steps to protect the client’s confidential information.


Even though a potential client may not speak English, attorneys should not be discouraged from representing a client just because they may require the use of an interpreter, says Michele D. Hangley, Philadelphia, cochair of the Section of Litigation’s Ethics and Professionalism Committee. “There are lots of ways that lawyers and clients can have communication problems even when they speak the same language, so the need for an interpreter in some cases should not be a reason to decline to represent someone,” she notes.


For law firms that regularly handle international business, one approach to ensure effective communication is to hire attorneys and staff that are fluent in the language of the countries in which the firm does business, notes Edward M. Mullins, Miami, cochair of the Section’s International Litigation Committee. “Sixty to seventy percent of the lawyers and staff in our firm speak Spanish,” Mullins says, which facilitates interpreting for the firm’s Spanish speaking clients as well as the internal review and translation of documents when needed.


Practical Concerns
The scarcity of competent legal interpreters, especially for certain not widely used languages, can present difficulties. At an initial client meeting, it may be sufficient to use a family member or friend of the client as an interpreter, Hangley suggests. “You generally can get enough information at that meeting to determine a client’s needs and to set up a system of communication going forward,” she says.


Assad cautions, however, that using a client’s family member or friend to interpret communications of substance may risk client confidentiality and prevent meaningful representation of an individual who must disclose details critical to the success of his or her case.


When an interpreter is not available, another option is to use a telephonic interpreting service. The disadvantage to such systems is that they are expensive. Hangley notes that in some cases, especially for low-income clients, an interpreter may not be affordable. In those situations, Hangley suggests that a lawyer must use creative methods, including possibly locating a competent interpreter who may be willing to donate his or her services.


A tempting solution for litigators when quick translation is needed is to use Yahoo! Babelfish or another free online translation service. Asaad cautions against using such tools. “An online translator is not the way to go to mitigate costs,” he warns. “Interpretation is not just word substitution. It’s much more than that because you’re not translating words, you’re translating meaning. In many instances you’re interpreting cultural nuances and that requires cultural import to convey meaning,” Assad says.


“When dealing with foreign nationals, it is critical to understand that, beyond the language barrier itself, there are cultural issues that can impact confidentiality and effective representation,” he says.


Keywords: litigation, ethics, limited English proficiency


 
Related Resources

  • » Representing Clients Through Interpreters, New Hampshire Bar Association Ethics Committee Opinion #2009/10-2 [PDF].
  • » Utah Ethics Opinion 96-06.
  • » Confidentiality, Attorney-Client Privilege, Arizona Ethics Opinion 97-05 (1997).
  • » Use of Interpreters, Association of the Bar of the City of New York, Ethics Opinion 1995-12.

 

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