Formal Ethics Opinion Outlines Client Language Access Duties

• Pages: 9-9
• Date: 01 October 2023
• Author: Josephine M. Bahn
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

he ABA’s Standing

Committee on Ethics and

Professional Responsibility has

provided guidance on a lawyer’s

duty to overcome language bar-

riers when representing the growing

number of clients with limited English

prof‌iciency or non-cognitive dierences

or impairments. According to Formal

Ethics Opinion 500, lawyers may now

be required to procure the services

of an interpreter, translator, or other

language-translation or assistance tech-

nology to comply with their duties of

communication and competence. ABA

Litigation Section leaders caution that

when providing advice and engaging in

the practice of law, lawyers must ensure

their clients fully understand all aspects

of their individual cases.

The standing committee analyzed a

lawyer’s duties under the Model Rules

of Professional Conduct in circum-

stances where there may be language

or other barriers to communicating with

a client. Model Rule 1.1 outlines the mini-

mum requirements related to a lawyer’s

competency and Model Rule 1.4 details

a lawyer’s duty of communication to

his or her client. Additionally, lawyers

are responsible for management of

nonlawyer assistants, like translators,

under Model Rule 5.3. Eective com-

munication is required between lawyers

and their clients to achieve the clients’

objectives, to allow the client to make

informed decisions, and for the client to

receive adequate access to justice.

The standing committee outlined

four principal requirements for lawyers

to comply with the Model Rules. Each

obligation requires a lawyer to consider

clients’ ability to connect and under-

stand the legal advice they are receiv-

ing from their lawyer, regardless of any

impairment or impediment.

First, lawyers must identify lan-

guage-access barriers aecting their

ability to eectively communicate with

their clients to establish a “reasonably

eective mode of communication,” the

Formal Ethics Opinion Outlines Client

Language Access Duties

committee said. Lawyers must evaluate

their clients’ need for interpreters or

other aid devices to better communi-

cate with the client rather than waiting

for the client to request such assis-

tance, the committee noted.

Next, lawyers must assess the quali-

f‌ications of the interpreter or aid device

service provider. This includes verifying

that the interpreter or translator the

lawyer plans to utilize is competent in

the client’s spoken language or mode

of speech, can adequately convey the

underlying parts of the legal concepts

involved in the client’s case, and lacks

any bias or partiality in translating.

Third, Model Rule 5.3 requires law-

yers to supervise interpreters or other

communicative systems, much like

other nonlawyer-assisted services

such as paralegals, to help their cli-

ents fully participate in their legal

matter. The lawyer has direct super-

visory authority over the nonlawyer

and is required to take all reasonable

opportunities to maintain the same

professional courtesies.

Finally, social and cultural barriers

such as religion and ethnicity “may

aect a client’s understanding of legal

advice, legal concepts, or other aspects

of the representation,” the formal

opinion noted. Lawyers must identify

these dierences and seek to under-

stand them, the committee stated. To

overcome these dierences, the law-

yer should pay attention to “cognitive

biases,” frame questions in “context-

sensitive” manners and explain con-

cepts in multiple ways, ask “conf‌irming

questions” to ensure the matter is

understood, and conduct additional

research, the committee explained.

The Model Rules require lawyers to

be aware of how to best communicate

with their clients, according to Section

leaders. Not only should attorneys

have interpreters or translators when

needed, but they should also prepare

their client for ocial questioning

regardless of the witness communica-

By Josephine M . Bahn, Litigation News As sociate Editor

tion barriers, notes John M. Barkett,

Miami, FL, cochair of the Section’s

Ethics & Professionalism Committee.

“As a profession, lawyers have the obli-

gation to communicate with their cli-

ents,” Barkett adds.

Eective representation requires

patience and conf‌irmation that the cli-

ent understands what the lawyer is

asking, explains Barkett. He illustrated

this obligation by discussing one of

his clients who only spoke Creole.

Through conversation over several

hours between himself and a translator,

they were able to prepare for testimony

before an immigration judge.“The

interpreter would translate my ques-

tions, and then she and my client would

engage in conversation.She would

then explain to me what was discussed,

and I would re-ask my question.And

so it went for several hours over two

days,” he explains.

Section leaders note that language

barriers can add further challenges to

client communications. In situations

where “the attorney and client do not

speak the same language, it heightens

the chance for misunderstandings and

potentially increases the costs associ-

ated with having documents translated

or having an interpreter participate

in telephone conferences,” explains

Michael S. LeBo, Newport Beach, CA,

cochair of the Section’s Professional

Liability Litigation Committee. If attor-

neys are able to distill potential com-

munication roadblocks at the outset, it

can cut unnecessary litigation costs for

their client, he concludes.

FALL 2023 • VOL. 4 9 NO. 1

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WOR LD