"What We Got Here Is Failure to Communicate"--The Legal, Ethical, and Monetary Considerations of Effective Communication.

• Author: Dietz, Matthew W.

The rejection of a potential client because that person does not speak English or may be Deaf (2) is considered to be discrimination--the decision to reject is based upon a protected status. For a person with limited English proficiency (LEP), it is considered national origin discrimination, and for a person who is Deaf, it is considered disability discrimination. However, the legal and ethical considerations for lawyers have been murky, and as a result, many persons with communication disabilities or LEP often cannot find competent counsel willing to represent them.

On October 6, 2021, the American Bar Association issued Formal Opinion 500--"Language Access in the Client-Lawyer Relationship." (3) The opinion clarifies that a lawyer's duty for communication and competence extends to the requirement to obtain an interpreter or translator for the client who has a communication disability or may have limited English proficiency and recognizes the importance of conveying accurate information in a culturally appropriate method.

In addition, particularly 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, bearing in mind potential differences in cultural and social assumptions that might impact meaning. (4)

While the ABA opinion focused on the rules of competence (5) and communication, (6) the failure to effectively communicate due to disability or national origin would also constitute misconduct under Rule Reg. Fla. Bar 4-8.4(d), as it would be discrimination on a protected class that is prejudicial to the administration of justice.

While it would have been refreshing if the profession had an epiphany and came to the realization that such discrimination was unethical, there is a strong legal underpinning for this opinion, both in the Americans with Disabilities Act (ADA) and in Title VI of the Civil Rights Act of 1964. (7) The ADA specifically deems discrimination as:

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.... (8)

Auxiliary aids and services includes the range of services or products necessary to ensure that information is conveyed to people who are Deaf or blind, such as interpreters or qualified readers. (9)

The Civil Rights Act of 1964, as well as the Florida Civil Rights Act, prohibit discrimination based on national origin, and English language requirements cause a disparate impact on the basis of national origin. (10) The regulations of the employment discrimination provisions of Title VII of the Civil Rights Act presume "English only" rules not required as a business necessity presumptively violate Title VII. (11) Title VI requires recipients of federal financial assistance to take reasonable steps to make their programs, services, and activities accessible by eligible persons with limited English proficiency. (12) This applies to any entity that is a recipient or subrecipient of the federal government, such as a state agency or health-care facility. The difference between Title VI and the ADA from other civil rights protections for national origin, is that Title VI and the ADA include an affirmative obligation to provide language assistance, while the other civil rights protections merely obligate the entity not to discriminate against the person. However, for a lawyer, when you accept a LEP client and fail to effectively communicate, then this failure can lead to malpractice or discipline.

What Is Effective Communication?

The ABA recommends that if communication with "reasonable efficacy" is lacking,

the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice. (13)

In 2017, the 11th Circuit Court of Appeals clarified the definition of effective communication under the ADA. (14) The standard for effective communication is that a person with a disability should be afforded a level of communication that is substantially equal to that afforded to a non-disabled person. (15) To be ineffective communication, a patient with a disability must experience a real hindrance, because of the disability, which affects the ability to exchange material information with his or her lawyer. (16) Similarly, for a person with limited English proficiency, that person should be afforded a level of communication that is substantially equal to that afforded to a person who speaks and understands English.

Is an Interpreter or Translator Required?

Initially, if there is any question relating to a potential or current client's understanding, the client should be told that he or she will be provided an interpreter upon request, and then there should be a discussion regarding what type of interpretation or accommodation is needed. Rule Reg. Fla. Bar 4-1.4 provides that a lawyer has a duty to explain "a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." (17) As such,

from the inception of the relationship, there needs to be a clear understanding of the representation agreement and the goals of the representation. In a lawyer-client relationship, most aspects of the relationship, from a retainer to explaining a plea agreement are the type of important and complex issues that require a qualified interpreter. A qualified interpreter for a legal assignment is able to interpret effectively, accurately, and impartially, both receptively...