Westfield Specialty Tip of the Month
Communicating with Clients Despite Language or Physical Barriers
The ABA Standing Committee on Ethics and Professional Responsibility recently published Formal Opinion 500, titled “Language Access in the Client-Lawyer Relationship.” For lawyers representing clients with whom no common language is shared, and for lawyers representing clients with a noncognitive physical condition that affects communication, this is an important opinion. In short, lawyers’ duties of communication and competence are unaffected, and remain in full force. Lawyers are obligated to find a way to communicate with their clients, as set forth in the opinion:
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. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished. In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer must 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.
Numerous articles provide assistance in guiding lawyers to fulfill their obligations:
When Dealing with Persons with Disabilities, the Interactive Process Is Absolutely Critical (William D. Goren)
ABA Formal Opinion 500: A lawyer’s ethical duties to the client when there is a language or other barrier to communication (Jeanne M. Huey)
ABA Formal Opinion: Lawyer Responsible for Communication Barriers in Lawyer-Client Relationship (Louisiana Legal Ethics)
ABA Offers Tips for Effective Client-Lawyer Communications (Joanna Storey)
If you represent clients that fall within the protections of Formal Opinion 500, the Opinion and related articles provide great guidance on fulfilling your obligations and ensuring the attorney-client relationship works as intended.
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