ABA issues guidance focusing on client language differences

With estimates that more than 67 million U.S. residents speak a language other than English at home, the American Bar Association has issued a formal opinion to guide lawyers in situations when they and their clients do not share a common language.

Formal Opinion 500, released Oct. 6 by the ABA Standing Committee on Ethics and Professional Responsibility, also covers when the client has a physical condition, such as a hearing, speech or vision disability, that might impede communications. For either situation, the opinion explores a lawyer’s duty for communication under Model Rule 1.4 and competence under Model Rule 1.1 of the ABA Model Rules of Professional Conduct.

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.

“When there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications, and that the lawyer understands the client’s communications,” the opinion said, including understanding that potential differences in cultural and social assumptions might impact the meaning of the communications.

Through the standing committee, the ABA periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying its model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. The formal opinion marks the 500^th issued by the ABA since 1924.

Related links:

• ABA Standing Committee on Ethics and Professional Responsibility
• ABA Model Rules of Professional Conduct
  
• Recent ABA ethics opinions
  
• Center for Immigration Studies:
  
  • 67.3 million in the United States spoke a foreign language at home in 2018”
    
• ABA Journal:
  • “New ABA ethics opinion clarifies obligations for language access in lawyer-client relationships”