Oklahoma Bar Journal
Communicating With Clients Whose Ability to Receive or Convey Information is Impeded
By Richard Stevens
Lawyers are required by ORPC Rule 1.4 to communicate effectively with clients to carry out the objectives of the representation. That requirement is not diminished or extinguished when the lawyer and the client do not share a common language, or the client’s ability to convey or receive information is impaired by a noncognitive physical condition such as hearing, speech or vision disability. Recently released ABA formal opinion 500 provides information to lawyers who represent clients in such circumstances. Lawyers faced with such situations are required to take appropriate action to ensure that the duty of communication under ORPC Rule 1.4 and competence under ORPC Rule 1.1 are fulfilled.
The population of the United States continues to become more diverse. This results in increasing language differences and an increase in the population of people with physical disabilities. One relatively recent study estimated that 25.1 million individuals in the United States had limited proficiency in the English language. Recent census information indicates almost 20% of Americans have a disability of some kind. The adoption of the Americans with Disabilities Act has led to a growing awareness within the profession that some clients’ ability to hear, speak or read may be impaired without some form of accommodation.
The duty of communication under Rule 1.4 requires the lawyer to:
- Promptly inform the client of any decision or circumstance with respect to which the clients informed consent ... is required …
- Reasonably consult with the client …
- Keep the client reasonably informed …
- Promptly comply with reasonable requests for information; and
- Consult with the client about any relevant limitation on the lawyer’s conduct …
This duty is not only necessary for the client to make informed decisions, but it is also a component of the lawyer’s obligation of competent representation. A lawyer is therefore required to provide and receive information in a manner that allows both the lawyer and client to comprehend.
WHEN IS HELP REQUIRED?
When it becomes clear that a language-access issue is present, the lawyer must determine how to satisfy the lawyer’s professional obligation of communication and competence. Ordinarily, the method of communication to be used by the lawyer and client is a matter to be decided between the two. When possible, the lawyer should consult with the client to make that decision. The lawyer must act when it becomes apparent there cannot be an understandable exchange of information between the lawyer and the client. The lawyer may not passively leave the decision to the client or put the responsibility to make arrangements for interpretation or translation entirely upon the client. The lawyer has an affirmative responsibility to ensure the client understands a lawyer's communications, and the lawyer understands the client's communications. Doubt should be resolved in favor of engaging an interpreter, translator or appropriate assistive device.
A lawyer should be mindful of the qualifications of the prospective interpreter or translator. A prospective interpreter or translator should be qualified in the language or mode required but must also have the expertise needed to comprehend legal concepts. This is necessary to assure that the legal advice being provided is communicated accurately. The lawyer must also make sure that the interpreter or translator is free of personal or conflicting interests that would prevent them from providing impartial services to the client. Often a friend or family member may serve as an interpreter or translator. However, a close relationship with the client may create a risk of conflict or bias.
ORPC Rule 5.3 requires that a lawyer adequately supervise nonlawyers with whom they are associated. This rule applies to those employed as interpreters or translators. The lawyer must make reasonable efforts to ensure such services are provided in accordance with the lawyer’s professional obligations. Specifically, a lawyer should take reasonable steps to maintain the confidentiality of client information. The lawyer should communicate adequately to gather reasonable assurance that the interpreter or translator is aware of and agrees to abide by the lawyer's duty of confidentiality.
A lawyer's duties of communication and competence remain the same regardless of a client’s diminished ability to receive or convey information. In those circumstances, a lawyer may be obligated to arrange an interpreter, translator or appropriate assistive technology. Further, the lawyer is required to adequately supervise nonlawyers who may be engaged to provide such services and ensure client confidences are protected.
I recommend that any lawyer who is confronted with a language-access issue read ABA formal opinion 500.
Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at firstname.lastname@example.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.
Originally published in the Oklahoma Bar Journal – OBJ 92 Vol 10 (December 2021)