In some areas of practice lawyers frequently engage interpreters to assist in their practice. Under circumstances where the client only speaks a foreign language that the lawyer does not understand, interpreters may be essential in order to maintain an effective line of communication with the client.
When using interpreters, there are several ethical issues to keep in mind.
Supervision
The first of these is to provide adequate supervision to those who provide such services to ensure that their conduct comports with the ethical obligations of the lawyer. See, ABA Model Rule 5.3Responsibilities Regarding Nonlawyer Services. (Note that in 2012, the ABA Ethics 20/20 Commission inspired amendments to Rule 5.3 make it clear that the duty to supervise nonlawyers applies not only to those nonlawyers who are employed full-time by the lawyer or law firm but also to nonlawyers from outside the practice who are retained on a case by case basis. For further information on these amendments, see the Ethics 20/20 Resolution and Report 105(c).
Here, the duty to supervise includes the obligation to ensure that the interpreter complies with the lawyer's obligations under Model Rule 1.6 Confidentiality of Information and does not disclose the client’s confidential information. See, e.g. Illinois State Bar Opinion 03-07 (2003) (a lawyer who uses a sign language interpreter must carefully supervise and ensure that the interpreter comports with the lawyer’s obligations to ensure that the client’s confidences are preserved under Rule 1.6.)
Competence and Communication
New Hampshire Bar Opinion 2009-10/2 (2009) addressed whether a lawyer could represent a client who speaks a foreign language that he does not understand without an interpreter. While acknowledging that sometimes lawyers have trouble communicating with clients even when they speak the same language, the Opinion cautioned that depending on the circumstances, in order to provide competent representation under Rule 1.1 Competence, as well as to comply with the requirements ofRule 1.4 Communication, it may be advisable to engage the services of a “qualified, impartial” interpreter. Ideally, this would involve associating with a lawyer who speaks the language and can act as an interpreter, or hiring a professional interpreter from a commercial service.
Referring to the New Hampshire version of Rule 5.3, the Opinion stated that the lawyer using an interpreter has an obligation to see that the information being translated is done accurately, and suggested that when meeting with the client, lawyers should ask several follow up “confirming” questions to ensure that the client has clearly understood what the lawyer is trying to convey.
Utah Ethics Advisory Opinion No. 96-06 stated that the lawyer must also take steps to ensure that the interpreter is not providing his/her own “spin” on the legal issues involved, as this could constitute unauthorized practice:
…an attorney must be cautious in insuring that the attorney and client are communicating with each other through the interpreter, rather than the interpreter giving legal advice independent of the attorney. To allow such a result would be to assist in the unauthorized practice of law in violation of Rule 5.5(b).
Avoid the Client’s Family and Friends
The New Hampshire opinion also cautioned that while it is not always possible, lawyers should avoid using the client’s family members as interpreters. The opinion stated:
…[A]ttorneys are cautioned that using relatives or friends of clients as interpreters carries substantial risks. Such interpreters may have a personal interest in the outcome of the representation and, therefore, their interpretation may be biased. Often, cultural and social factors, or family dynamics can interfere with the accuracy of such interpreters' translation. Attorneys should be aware of these risks, and should take steps that are reasonable under the circumstances to ensure that the selected interpreter is appropriate. For example, attorneys should watch for cues that indicate that the interpreter is speaking for the client or filtering the attorney's statements rather than impartially conveying the communications.
Utah Ethics Advisory Opinion No. 96-06 also cautioned against the use of family members, citing the possibility that they may have a personal interest in the outcome of the matter that could trigger conflicts of interest issues under Rule 1.7 Conflict of Interest: Current Clients.
New York City Bar Opinion 1995-12 examined in detail the need for interpreters. It also made note of the circumstances under which parties to court or other types of official proceedings are entitled to have access to interpreters in certain court proceedings.
Similar to the New Hampshire state bar opinion, the New York Committee cautioned against using family members as translators, noting that a family member may not have a firm grasp of the legal issues involved, and may therefore have difficulty in conveying the essence of what the lawyer is trying to communicate. The Opinion stated:
…Lawyers should be aware of the risk of inaccuracies in translation if amateur interpreters are used, and should proceed cautiously in light of their inability to determine the layperson's or lawyer's proficiency in the foreign or sign language.
“The New York committee noted further that in the case of a client who is deaf, the mere exchange of written notes may not be enough and that in order to provide effective and free-flowing communication, a sign language interpreter may be necessary. Accord, New York State Bar Association Opinion 1053 (2015).
When dealing with clients who do not speak a mutually understood language, it may be advisable to use an interpreter. Doing so can help to ensure that the lawyer can clearly communicate with and competently represent the client. As with any non lawyer engaged by the lawyer, adequate supervision is required so that the interpreter understands the importance of providing accurate translations and the obligations to preserve client confidence.
