Model Rule 1.1 (competency) and Rule 1.4 (communication) govern a lawyer’s duty to effectively communicate with their clients. A recent ethics opinion from the ABA—ABA Formal Opinion 500—makes the obvious point that these duties are not diminished when you have a client with whom you cannot communicate due to a language or other barrier. The Opinion, however, leaves out important considerations and provides an impractical standard for the real world practice of law.
The Opinion fails to recognize the legal duty to communicate with disabled clients
First, the Opinion does not adequately distinguish the ethical duty of effective communication under the Model Rules from the legal duty to communicate under Federal Law. Law firms are public accommodations subject to Title III of the Americans with Disabilities Act and are legally obligated to communicate with those whose disabilities make ordinary written or oral communication difficult. With respect to a client with a disability a law firm cannot decline the representation just because, as the Opinion suggests, “obtaining necessary services would place an unreasonable financial burden on the lawyer.” To refuse to serve a client with a disability just because it costs money violates the anti-discrimination provisions in the ADA, as would imposing the cost on the client in most cases. If your client has a disability that affects communication the inquiry about fulfilling your legal as well as ethical obligations will require a more nuanced approach than just looking at the cost. The same can be true for all clients with limited English proficiency if your law firm receives any form of federal support and is therefore covered by Title VI of the Civil Rights Act.
An interpreter is not always required for effective communication
While ignoring these absolute legal requirements the Opinion also fails to take into account the many possibilities of effective communication without the use of a hired interpreter. The Opinion refers to “engagement of an interpreter, translator, or an appropriate assistive or language-translation device” as if these were universally necessary for effective communication and as if every case warrants them or every lawyer or client can afford them.
Here there are lessons to be learned from the ADA, which has required regulators and the courts to wrestle with how the cost of communication can be balanced against the need for communication in a particular form. Broadly speaking, the ADA requires rapid accurate oral communication—usually through ASL interpretation—in situations where speed and accuracy are important, like a hospital emergency room. When time is not of the essence, or perfect accuracy is less critical, written communications or oral communications through a friend or family member may be sufficient.
The ethical duties regarding the use of non-lawyer staff always applies
The Opinion reminds us that our duty of supervision over non lawyers under Rule 5.3, and our duties under Rule 1.6 regarding confidentiality apply to any interpreter we may utilize. These issues can be dealt with under the same kind of written contract used by the firm for other non-lawyers. This is so whether the interpreter is a professional or the client’s friend or family member. A contract with anyone assisting the client with communication in the case can also protect against waiver of the privilege.
What about the privilege?
Because it is a question of law, the Opinion does not address what might constitute waiver of the privilege in situations where someone not engaged by the firm is assisting with client communication. While this problem can be resolved with a contract to provide interpretation services, there may be situations where the lawyer does not realize that the client is utilizing third party assistance for translating written communications on their end. For this reason it is always a good idea to make sure the client fully understands the privilege so that it is not inadvertently waived. Prudent lawyers will also look up the caselaw in their jurisdiction regarding waiver of the privilege prior to allowing any third party to be present at or assist with any privileged conversation with the client.
Lawyers concerned with effective communication must inevitably identify and work through communication issues using tools that may include communicating only in writing or using ad hoc translations by friends and relatives in addition to the use of trained interpreters or assistive technology for important oral communications. They must also adhere to Federal Law regarding disabled clients. It is only by looking at the entire range of communication options that a lawyer can discharge their ethical duties under the Rules and provide legal services at costs that make sense for smaller cases or firms who seek to regularly serve clients with limited communication skills.
©2021. Published by the American Bar Association Litigation Section Professionalism and Ethics Committee December 3, 2021. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.