On October 6, 2021, the American Bar Association issued Formal Opinion 500 addressing language access in the client-lawyer relationship. The Opinion notes: “Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship.”
The importance of this concept cannot be overstated. Misunderstandings between clients and lawyers can lead to a breakdown in the relationship, or worse – discipline and/or malpractice claims against the lawyers.
The Opinion discusses communication challenges related to language differences, cultural differences, and physical differences. Whether the client and lawyer speak different languages/dialects or they give different meanings to the same words or circumstances, it is the lawyer’s duty to competently and effectively communicate with the client. See Cal. Rules of Prof. Conduct (CRPC), Rules 1.1 (Competence), 1.4 (Communication), and 1.6 (Confidentiality).
The Opinion offers a few practical tips, depending on the facts and circumstances:
- Engage the services of a qualified and impartial interpreter
- Employ an appropriate assistive or language-translation device
- Evaluate the qualifications for a person or service providing translation or interpretive services
- Supervise the translator or interpreter
- Take particular care when using a client’s relatives or friends to interpret or translate, because of the substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation
- Be mindful that the client may view the representation through the lens of cultural and social perspectives that are not shared by or familiar to the lawyer
The goal is to “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.”
In addition to general duties of communication with a client, many of California’s ethics rules require the client’s “informed consent.” See, e.g., CRPC Rules 1.4, 1.6, 1.7 (Conflicts) and. 1.8.1 (Business Transactions with a Client). The CRPC defines “informed consent” as “a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” CRPC Rule 1.0.1(e). The tips suggested in the Opinion should help to ensure a client consent is informed, which will minimize the risk of consent being overturned and any resulting liability.
Joanna L. Storey is a lawyer with Hinshaw & Culbertson LLP where she focuses her practice on professional liability, risk management, and ethics for lawyers. She is a Certified Information Privacy Professional/United States (CIPP/US) and advises clients on compliance with privacy and cybersecurity related laws, rules, and regulations.