CBA Record November-December 2021
clients to make informed decisions about their legal matters, and to ensure lawyers are providing competent legal representa- tion consistent with their duties under Rule 1.1. As the ABA indicated in its opinion, “[i]f a lawyer does not communicate with a client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation neces- sary to provide the client with competent representation.” In instances where a lawyer determines that an impediment affects the ability to communicate with a client, the lawyer must then determine whether they should use an interpreter, a translator, or make use of other assistive or language-translation technologies. Such actions are required to satisfy the lawyer’s professional obligations, which is the case whether the source of the communicate impediment is a limited language proficiency, lack of a common language, or a non-cognitive condition. Lawyers should decide with their client what type of communication mode will be used during a representation. Formal Op. 500 specifically notes that it is not sufficient for lawyers to either let the client make the decision, or to thrust the responsibility of figuring out the logistics of interpretation or translation on the client. Lawyers also have a duty to make sure that anyone engaged to assist in commu- nications between the lawyer and client is qualified to serve as an interpreter or trans- lator, is familiar with and able to explain the relevant law and legal concepts and is free from any conflicting interests that would create a risk of bias or other conflict. In most but not all situations, this is prob- ably best achieved by engaging an outside professional. Finally, under Rule 5.3, the lawyer will be responsible for ensuring that any nonlawyer service provider’s conduct is consistent with the lawyer’s professional obligations under the Rules of Professional Conduct. ABA Formal Op. 500 is detailed and includes a number of issues I’ve left out here due to lack of space, including how to assess costs for translation or interpretation services, a lawyer’s duty to comply with the Americans with Disabilities Act, and guid- ance on social or cultural issues. It is worth reading carefully.
PRACTICAL ETHICS BY TRISHA RICH Can YouHear Me Now? ABAFormal Opinion 500 and the Duty to Communicate Effectively W hen I first began practicing as a legal ethics lawyer, a now-retired colleague graciously took me to
ties Regarding Nonlawyer Assistance). For the sake of brevity, the ABA excluded from the scope of Formal Op. 500 obligations attorneys have under Rule 1.14 to clients with diminished capacities—I will do the same here, but if you run across such a situ- ation, be sure to read Rule 1.14 carefully. In its opinion, the ABA describes Rules 1.1 and 1.4 as providing a “baseline” for a lawyer’s duties to their client, which require that, in situations where the lawyer and client cannot communicate with reason- able efficacy, 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.” As the ABA notes, Rule 1.4’s requirement to com- municate with clients includes a number of component parts, including a duty to promptly inform clients of situations where their informed consent is required; to reasonably consult with clients about their representations; to keep clients reason- ably informed about the matter’s status; to promptly comply with reasonable requests for information; and to consult with clients on any limitations on a lawyer’s ability to provide legal assistance. Complying with the duties of Rule 1.4 is necessary for at least two reasons—to allow
meet George Collins (thank you, David Mann!). George, who passed away in 2016, was an early mentor of mine (a role he also served to many other legal ethicists), had a wealth of knowledge, and was an absolute legend in the field. During our first meet- ing, he ran through some of the common scenarios he saw in lawyer disciplinary cases. In addition to the usual categories we’re all aware of (family law, immigration, high- volume practices, etc.), he mentioned one I hadn’t focused on before—matters where the attorney and the client communicate in different languages. So, when the American Bar Association released Formal Opinion 500 on October 6, 2021, I immediately thought back to that conversation in George’s office. The ABA’s recent opinion examines attorneys’ obliga- tions where their communication with a client is impeded for some reason, including because the attorney and client do not share a common language, or because the client has a non-cognitive physical condition that impacts communication, such as a hearing, speech, or vision condition. The ABA also noted the increasing diversity and changing demographics of the American population, which has led to a significant increase of language diversity throughout the country. The relevant rules in these scenarios will primarily be Rules 1.1 (Competence), 1.4 (Communication), and 5.3 (Responsibili-
TrishaRich isa litigator and legal ethicist at Holland&Knight. You can reach her at email@example.com, on LinkedIn at linkedin.com/in/trisharich, or on Twitter @_TrishRich.
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