Language Access in the Client-Lawyer Relationship: Summary of ABA Formal Opinion 500

An attorney whose client speaks a different language or has a non-cognitive disability such as a hearing or speech disability that may interfere with effective communication has an ethical duty to take steps to ensure that a client understands and is understood by their attorney according to new ABA Formal Opinion 500. The obligation is grounded in two related duties: the duty of communication (ABA Model Rule 1.4) and the duty of competence (ABA Model Rule 1.1). The opinion provides that a lawyer has an affirmative duty to assist the client in understanding the need for interpretive services and when reasonably necessary, take steps to secure those services. The opinion also addresses the skills and independence that an interpreter must have and the lawyer’s duty to supervise any interpreter or translator under the duty to supervise (Rule 5.3). The opinion also notes the increasing availability of technological solutions to bridge communication gaps.

The opinion’s central thesis is that effective communication with a client is essential to competent representation. Communication is the express concern of Rule 1.4. Rule 1.4(a) enumerates categories of information that a lawyer must communicate, including developments in the matter, conflicts, and limitations on the lawyer’s and client goals. Rule 1.4(b) requires the lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions . . .” In addition, Opinion 500 observes that competence requires effective communication so that the lawyer can “obtain information required to address the client’s legal matter appropriately.”

When a lawyer determines that there is a language-access issue, the lawyer has an obligation to take steps to help the client understand the need for interpretation or translation and, when reasonably necessary, take steps to secure such services. Furthermore, the lawyer has an obligation to verify that the prospective interpreter or translator has the required language skills and the ability to communicate legal concepts. Verification is best achieved in most circumstances by engaging a professional interpreter or translator. The opinion advises a lawyer to proceed with caution in relying on the assistance of a non-professional interpreter or translator such as a member of the lawyer’s staff. Further, the opinion notes that particular care must be taken when using a client’s relative or friend because of the potential that the interpreter may have a personal interest in the outcome of the matter. Where procuring necessary services would put an unreasonable financial burden on the attorney, the opinion advises that the attorney decline the representation absent exigent circumstances.

Finally, the opinion addresses the related issue of social and cultural differences that can likewise impede effective communication between a lawyer and client. The opinion advises that competent representation also requires identifying cultural differences, understanding those differences, paying attention to implicit bias that may interfere with effective communication, taking the time needed to reformulate questions in a variety of manners to elicit information, and drawing on expertise of others when needed.