A lawyer’s obligations of communication and competence aren’t diminished when a client and a lawyer don’t share a common language or owing to a client’s non-cognitive physical condition, according to a recently issued opinion from the American Bar Association.
Formal Opinion 500 states that, in both situations, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 still stand. Moreover, a lawyer may be obligated to ensure those duties are discharged through an impartial interpreter or translator and assistive or language-translation technologies, when necessary.
Importantly, a lawyer must ensure “the client understands the legal significance of the translated or interpreted communications.” Likewise, the lawyer must understand the client, keeping in mind potential cultural differences and social assumptions that may impact meaning.
Meeting the needs of a diversifying America
Lawyers are increasingly communicating with clients who lack or have limited proficiency in the attorney’s language or who may require more accessible forms of communication.
According to the U.S. Census Bureau’s Diversity Index, in 2020, there was a 61% chance that two people selected at random would be from different race and ethnicity groups. This is up from 55% in 2010.
Moreover, according to the Centers for Disease Control and Prevention, roughly one in four (26%) of adults living in the U.S. have some type of disability.
Evaluating the situation
Once a lawyer determines that a language-access issue is affecting their ability to communicate with a client, the lawyer must evaluate whether the engagement of an interpreter, translator, and/or assistive or language-translation technology is needed to satisfy their professional obligations.
A lawyer must help the client understand the need for and purpose of the interpreter or translator and ensure that the client understands the lawyer’s communications and that they, in turn, understand communications from the client. This may include translating written documents.
Interpreters or translators must be qualified and able to explain the law and legal concepts in the required language or mode, free of any potential conflicts of interest. Moreover, the lawyer is responsible for ensuring that the conduct of any non-lawyer service provider is compatible with the professional obligations of the lawyer.
Finally, a lawyer must bear in mind potential social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation.
Language access in Illinois’ courts
Language access in Illinois’ courts is something the Illinois Supreme Court has prioritized for some time.
It established the Commission on Access to Justice (ATJ Commission) in 2012 to enhance equal access to Illinois’ civil courts and administrative agencies. As part of its duties, the ATJ Commission is addressing language barriers in the courtroom, including increasing the use of approved interpreters in multiple languages (including American sign language) and creating standardized statewide court forms that are translated into the languages most commonly spoken by self-represented litigants with limited English proficiency.
“Understanding the language being spoken during a court proceeding is a fundamental pillar of ensuring meaningful participation in the court process,” said Alison Spanner, Assistant Director of the Access to Justice Division at the Administrative Office of the Illinois Courts. “When the courts use the vetted interpreters on our Interpreter Registry, they are taking meaningful steps toward leveling the playing field for that court patron.”
As of May 2020, the ATJ Commission’s Court Interpreter Registry included 266 approved interpreters who spoke 22 languages. To be certified, these interpreters must complete an orientation and take written and oral exams.
Its work has paid off. In 2015, only 25% of state court interpretations were done by interpreters on the registry. In 2018, this number increased to 66%.
It’s important for Illinois lawyers to note the Illinois Interpreter’s Privilege Act provides that, “If a communication is otherwise privileged, that underlying privilege is not waived because of the presence of the interpreter.” 735 ILCS 5/8-911.
Additionally, ISBA Ethics Opinion 03-07 found communications between a lawyer and interpreter remain confidential under Illinois Rule of Professional Conduct 1.6, while imposing the requirements of Rule 5.3 on the lawyer to make reasonable efforts to ensure the conduct of the interpreter is compatible with Rule 1.6.
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