Clients do not all have the same communication methods as their lawyers. Different languages or hearing, speech, or visual disabilities can all impede a lawyer’s and a client’s ability to convey and receive information to and from each other. Despite these communication barriers, a lawyer still has the ethical duties to competently represent a client and sufficiently communicate with clients. See La. Rules of Prof’l Cond. R. 1.1; id. r. 1.4.
So what exactly is required of a lawyer who must communicate with a client who has none to limited proficiency in the lawyer’s language, or who cannot hear, speak, or read without assistance? And how must a lawyer supervise for the adequacy of the communication assistance?
According to a Formal Opinion 500 issued by the American Bar Association on October 6, 2021:
[W]hen a lawyer and client cannot communicate with reasonable 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.
ABA Formal Op. No. 500 at 2-3. Specifically, the opinion indicates that a lawyer has an obligation to (1) assess a client’s need for communication assistance (be that through a translator, interpreter, or interpretive device); (2) ensure the qualifications of such assistance; (3) appropriately supervise such assistance; and (4) understand cultural differences that could impact effective communication. Id. at 3. The opinion bases its analysis on the Model Rules 1.1, 1.4, and 5.3. Louisiana’s corresponding rules are virtually identical to the Model Rules, so Louisiana practitioners should follow the reasoning set forth in the ABA’s Formal Opinion.
A lawyer’s duty to assess for communication barriers
A lawyer has a duty to assess whether a client needs communication assistance, both for spoken communication and written documents. Id. at 3. If so, the lawyer must convey the importance of the assistance to the client and make appropriate arrangements. Id. at 5-6. This duty falls directly on a lawyer—a lawyer cannot make the client responsible for arranging his or her own communication. Id.
Sufficient qualifications for communication assistants
Any translation or interpretive services arranged by the lawyer must be qualified—meaning the assistant must be able to communicate in the appropriate method and comprehend and convey legal concepts. Id. at 6-7. Ideally, a lawyer will engage outside professional services. Use of a co-worker to facilitate communication is permitted, but a lawyer should assess the risks of inaccurate interpretation or translation. Additionally, while a client’s friends or family may function as adequate communication assistants, a lawyer must keep in mind the substantial issues of confidentiality and potential bias. Id.
A lawyer’s supervisory duties of communication assistants
A lawyer has the responsibility to supervise any communication assistant’s work. See id. at 8; La. Rules Prof’l Cond. R. 5.3. Specifically, the lawyer should be aware of the substantial risks in confidentiality. A lawyer should address these risks in any engagement with a communication assistant and ensure that the translator or interpreter understands the lawyer’s ethical duties and agrees to follow them. See Formal Opinion 500 at 8-9.
Understanding social and cultural differences that could impact communication
Lastly, a lawyer should keep apprised of potential social and cultural differences that could impact effective communication. Id. at 9. A lawyer must identify and understand any differences and make adequate adjustments, such as explaining the matter in different ways and allowing additional time for client meetings. A lawyer cannot necessarily rely on a communication assistant to identify these issues, and the onus remains on the lawyer to be aware of and address and issues that could arise. Id.