Snyder: New ABA Ethics Opinion Addresses Use of Interpreters

Wednesday, November 10, 2021 | 0

On Oct. 6, the American Bar Association published Formal Opinion 500, Language Access in the Client-Lawyer Relationship.

Teddy Snyder

“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.”

The opinion recognizes that there are many ways to secure translation assistance, including use of a friend or family member or electronic device. Circumstances must dictate what method is most appropriate. The lawyer must consult with the client about the mode of communication. “A lawyer may not, however, passively leave the decision to the client or thrust the responsibility to make arrangements for interpretation or translation entirely upon the client.”

California lawyers should already be aware of this duty, pursuant to State Bar Formal Ethics Opinion 1984-77, which construed the duty of competence to include the requirement to “take all reasonable steps” to surmount language barriers. Much of the text of the California opinion is mirrored in Formal Opinion 500.

The ABA opinion notes that the Americans with Disabilities Act imposes a responsibility on covered businesses to provide interpretive services when needed. According to the opinion, “The ADA generally obligates the lawyer to bear the cost of procuring such services when they are necessary to accommodate a disability.” In California workers' compensation cases, the cost to provide an interpreter at many events will be borne by the employer. Even when the employer is not required to provide an interpreter, it may be cost-effective to do so to avoid later questions about what actually transpired.

When you’re outside the attorney-client relationship

Formal Opinion 500 concentrates on resolving language barriers between attorney and client. But the cases with language issues I see most commonly involve an attorney who is fluent in the client’s language. The issue is whether the attorney is fully and accurately translating or even conveying some information at all.

Aside from any language issue, parties often suspect that an opposing party is not getting the full story from that party’s own attorney. One reason attorneys and claims personnel turn to mediation is for the opportunity to communicate with the opposing party. Mediation communication can be categorized as direct, which happens when all parties gather for a joint session, or facilitated, when groups of aligned participants separate into caucuses and the mediator conveys messages. Even before mediation-by-Zoom, attorneys sometimes excluded their clients from discussions about the case, or the actual check-writer did not attend. This issue can be exacerbated when a client has technology challenges.

Effective negotiation occurs when the necessary participants are fully present. That includes being able to understand everything that is occurring. ABA Opinion 500 reinforces the duty of attorneys to provide their clients with the tools to assure that happens, including appropriate interpretation services.

Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through snydermediations.com.