Communication is a cornerstone of the attorney-client relationship. But what if communication is difficult or impossible because the attorney and client don’t share a common language, or because the client has a non-cognitive impairment of hearing, speech or vision?

A recent Formal Ethics Opinion from the American Bar Association addresses that issue.

“Lawyers must communicate with clients in a manner that is reasonably understandable to those clients,” according to Formal Opinion 500, issued October 6 by the ABA Standing Committee on Ethics and Professional Responsibility. “This is a central tenet of the duties applicable to the client-lawyer relationship.”

When client communication is impeded, the opinion states, the ethical imperatives of Model Rule 1.4 [communication] and Model Rule 1.1 [competence] are undiminished.

“[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 opinion states. “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.”

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ABA Formal Opinion 500

Here are some key takeaways of ABA Formal Opinion 500:

• “The duty of communication under current Model Rule 1.4 includes a number of communicative components, including duties: (1) to promptly inform the client of information when the client’s informed consent is required; (2) to reasonably consult with the client about the representation; (3) to keep the client reasonably informed about the status of a matter; (4) to promptly comply with reasonable requests for information; and (5) to consult with the client on relevant limitations on the lawyer’s ability to provide legal assistance.”

• [I]t is incumbent on the lawyer to ensure that the client has sufficient information to participate intelligently in the clientlawyer relationship, to ‘explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’”

• “Reasonably understandable client-lawyer communication is not only necessary to enable the client to make informed decisions; it is also an element of the lawyer’s obligation to provide the client with competent representation under Model Rule 1.1.”

• “In general, the information that must be provided when discharging the duty to explain a matter reasonably is ‘that appropriate for a client who is a comprehending and responsible adult.’ If communications issues are such that the client cannot adequately comprehend the lawyer’s advice and other communications, and thus, cannot participate intelligently in the representation, or the lawyer is unable to ascertain the information needed to competently assist the client, the lawyer must take measures to establish a reasonably effective mode of communication.”

• “Ordinarily, this will require engagement of a qualified impartial interpreter or translator (or, in some situations, the use of an appropriate assistive or language-translation device) so that the lawyer and client can reasonably understand one another to a degree that is compatible with the lawyer’s professional obligations.”

• Other issues addressed in the opinion: Evaluating Whether an Interpreter or Translator Is Required; Qualifications of a Person Providing Translation or Interpretive Services; Supervisory Duties When Engaging or Directing the Work of a Translator or Interpreter; and Guidance Regarding Social and Cultural Differences.

Source: American Bar Association

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