On October 6, 2021, the American Bar Association (ABA) released official recommendations on lawyers’ responsibilities when serving clients with limited English proficiency (LEP).
The formal opinion, Language Access in the Client-Lawyer Relationship, builds on the principle that attorneys must ensure that their clients have sufficient information to participate in decisions about their representation; and that lawyers can procure “adequate information” from their clients.
For clients dealing with language barriers or non-cognitive impediments to communication (e.g., speech, hearing, or vision disabilities), the obligation to take reasonable steps to enable communication still rests with the lawyer.
Making “every effort” to communicate might require enlisting outside help, in the form of people (translators and interpreters) or technology (including machine translation, or MT).
Deciding whether or not language assistance is required is the lawyer’s responsibility. When in doubt, the ABA recommends that the lawyer err on the side of caution and obtain help. Again, this puts the onus on the attorney, who may not “passively leave the decision to the client or thrust the responsibility to make arrangements for interpretation or translation entirely upon the client.”
“Once a lawyer determines that there is a language-access issue affecting the ability to communicate sufficiently with a client, the lawyer must evaluate whether engagement of an interpreter, translator, and/or the use of other assistive or language-translation technologies is needed to satisfy the lawyer’s professional obligations” — Formal Opinion 500, 2021 Language Access in the Client-Lawyer Relationship
Rather than specify that attorneys should engage linguists with specific credentials, or find them through a language service provider, the ABA extends guidance on evaluating the linguistic qualifications of potential interpreters and translators.
Proceed With Caution
While the ABA acknowledges that in certain circumstances, “alternative arrangements may suffice,” the opinion states that lawyers should “proceed cautiously” with nonprofessional interpreters, such as multilingual colleagues; and especially with relatives or friends, due to the increased risk of inaccurate renderings and bias. (Attorneys should discuss with the client the pros and cons of using friends and family members as interpreters.)
As an extreme example of legal interpreting gone wrong, the opinion cites a real-life case in which a lawyer brought a client an untrained, unpaid “interpreter” who needed community service credit for her own criminal conviction.
This egregious outlier notwithstanding, expectations for the use of language services in client-lawyer communications are changing as the number of LEP legal clients in the US grows.
Only time will tell whether lawyers will standardize their industry’s policies for engaging interpreters and translators; thereby approaching the status quo for US healthcare established by federal mandates.
Unlike hospitals, attorneys may choose to withdraw representation if the needed language services are “too expensive,” although the ABA does not quantify that threshold.
The ABA further admits that they are not language technology experts, stating: “Owing to the rapid evolution of these technologies and the variability of client needs in the context of language access, an analysis of whether and when a technology will address a particular language-access quandary is beyond the scope of this opinion.”
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