October 8, 2021

ABA Formal Opinion Urges Lawyers to Take Language-Access Barriers into Consideration

Additional Steps May Be Needed to Meet Ethical Duties Under Model Rules 1.1 and 1.4
Holland & Knight Alert
Christopher R. Heredia

Highlights

  • In recognizing that lawyers are increasingly engaged in the representation of clients who may not speak the same language or who may have limited or no proficiency in either written or oral communication, lawyers must be acutely aware of their duty and ability to effectively communicate with clients, as well as any impediments to doing so.
  • The American Bar Association (ABA) recently issued Formal Ethics Opinion 500, which examines a lawyer's duties of communication and competence in situations involving language-access issues with clients.
  • In certain circumstances, Opinion 500 recommends, lawyers should take additional steps to resolve communication issues in order to meet their ethical duties under ABA Model Rules 1.1 and 1.4. Such steps could include the use of an interpreter or translator, language-assistive technologies or, in extreme situations where the requisite assistance is unavailable, withdrawal from the representation.

The American Bar Association's (ABA) Formal Ethics Opinion 500, issued on Oct. 6, 2021, examines a lawyer's duties of communication and competence in situations involving language-access issues with clients, where clients may speak a different language or have non-cognitive physical conditions affecting their ability to communicate, such as a hearing or speech disability.1 In recognizing the country's ever-diversifying population, as well as the profession's growing awareness of the varying needs of clients with limited language abilities and proficiencies, the opinion recommends that in certain circumstances, lawyers must work to resolve communication issues in order to meet their ethical duties under ABA Model Rules 1.1 and 1.4. Such additional steps may involve the use of an interpreter or translator, language-assistive technologies or, in extreme situations where the requisite assistance is unavailable, withdrawal from the representation.

A Lawyer's Obligations Under Model Rules 1.1 and 1.4

Under Model Rule 1.1, lawyers must provide clients with competent representation. Such competence requires reasonable "thoroughness and preparation," and, as addressed by comment [5], requires an "inquiry into and analysis of the factual and legal elements" of the client's matter. The duty of competence, in part, is made possible by communicating with and receiving information from the client. Concomitantly, Model Rule 1.4 confirms a lawyer's duty to reasonably communicate and consult with clients, necessarily requiring the exchange of information in a manner that the client reasonably understands.

Recognizing the fundamental importance of communication between lawyers and clients in achieving the clients' objectives and allowing clients to make informed decisions, Opinion 500 considers the extent to which an attorney must act to resolve any communication barriers. The Opinion provides a roadmap for attorneys and offers practical guidance to ensure that lawyers meet their professional obligations to clients. Within that context, the Opinion offers four overall requirements for attorneys:

  1. identifying any language-access issues affecting their ability to communicate with a client
  2. evaluating the need for an interpreter or interpretive device to aid in communicating with the client
  3. determining the appropriate qualifications for any person or service providing interpretive services
  4. adequately supervising and directing a translator or interpreter in the course of communicating with the client

The Opinion provides that a lawyer must first evaluate the client's ability to adequately understand the lawyer's advice and communications. Once it becomes apparent that the client is unable to adequately understand or participate in the representation, the lawyer is obligated to establish a "reasonably effective mode of communication" with the client. The method to achieve that mode of communication is ordinarily decided between the lawyer and client, but the Opinion cautions lawyers from passively leaving the decision to engage language-access assistance or arrangements to the client, regardless of whether the client selects the attorney knowing that language barriers exist. The Opinion further affirms that it is the lawyer's duty to ensure that the client understands the lawyer's communications, which is ordinarily accomplished through the use of an interpreter, translator, or language translation or assistive device.

Once the lawyer determines that assistance through an interpreter or translator is required, the Opinion recommends that lawyers must ensure that any individual providing those services is qualified to do so, noting that qualifications will include confirming that the interpreter/translator is competent in the relevant language or mode of speech, has familiarity with the legal concepts involved and does not have any conflicts of interest which would present a risk of bias or partiality in translating. The preferred way to ensure such qualifications, as the Opinion describes, is to engage a professional outside vendor.

Alternatively, lawyers may utilize another multilingual lawyer or staff member within their firm to assist with translation, or, if necessary, may enlist the help of the client's friend or family member, assuming that certain precautions are taken.2 In the event that the lawyer cannot obtain the necessary language-access assistance, or when doing so may be financially burdensome, declining or withdrawing from the representation may be necessary. Opinion 500 further provides that when a lawyer uses an interpreter or translator, under Model Rule 5.3, they are required to adequately supervise the individual to ensure adherence to the lawyer's professional obligations, similar to any other nonlawyer that the lawyer has employed or retained. Such responsibilities incudes ensuring protection of the client's confidential information.

Lastly, the Opinion reminds lawyers that these language-access issues may not always be readily apparent, and that they must nonetheless be mindful of the significance of any societal, cultural or other differences and their effect on client communications.

Conclusion and Takeaways

Communication with clients is a fundamental component in the practice of law. In recognizing that lawyers are increasingly engaged in the representation of clients who may not speak the same language or who may have limited or no proficiency in either written or oral communication, lawyers must be acutely aware of their duty and ability to effectively communicate with clients, as well as any impediments to doing so. Lawyers who find themselves in such circumstances may be required to take reasonably appropriate measures to ensure the fulfillment of their duties of competent representation and communication with clients.

Notes

1 The Opinion explicitly declined to address lawyers' obligations when representing clients with diminished capacities or other cognitive conditions.

2 The Opinion cautions lawyers when using nonprofessional or "lay" interpreters, including other members within the lawyer's firm or a client's friend or family member, given the reduced ability to determine their qualifications, as well as the nature of close relationships and their potential for personal interests to impede the communications.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.


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