Communication with clients is a fundamental aspect of law practice.  Not only is reasonable communication an ethical requirement, under ABA Model Rule 1.4, but it is also a practical necessity as part of the lawyer’s duty of competency.   A lawyer cannot adequately advise a client or make tactical decisions without access to the most important information source for the matter – the client.

But what happens if the client is unable to communicate with the lawyer either because of language barriers or because of some physical disability?[1]   ABA Formal Opinion 500 (October 7, 2021) addresses this topic. The conclusion reached by the Committee is that a lawyer’s duty of competency under Model Rule 1.1 and the duty to communicate under Model Rule 1.4 “do not change 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 when a client is a person with a non-cognitive physical condition, such as a hearing, speech, or vision disability.”

The Committee then discussed a number of ramifications of this general conclusion:

• The lawyer has a duty to assess whether the client’s ability to receive or convey information is impeded;
• The lawyer cannot rely simply on the client’s assurances that the client is able to understand the lawyer’s communications;
• It may be necessary for the lawyer to employ a qualified and impartial translator or to acquire an assistive or language translation device;
• As is the case with other contractors, lawyers have an obligation to supervise the work of translators and make sure they comply with ethical requirements, especially the duty of confidentiality;
• Reliance on a client’s friend or family member for translation is risky because the person is not a professional and conflicts of interest may exist;
• In some cases it may be appropriate to use the services of a nonprofessional translator, such as a staff member or another lawyer in the office, but the lawyer should use nonprofessionals with caution;
• Even when a translator is employed, it may be necessary for the lawyer to secure translation of specific documents;
• The opinion does not discuss the issue of cost associated with compliance with these ethical obligations; normally, this would depend on the engagement with the client, but the opinion points out that if the client’s impairment is covered by the Americans with Disabilities Act the firm cannot pass to the client the costs of auxiliary aids and services.  See footnote 8 of the opinion;
• If a lawyer is unable to comply with the communication and competency obligations outlined in the opinion, the lawyer may need to associate counsel able to provide such services or may be required to refuse the engagement or withdraw;
• Lawyers should be aware of cultural and social differences that could affect communications with their clients.

Practice Pointers: As part of their in-take procedures lawyers should do Communication Due Diligence.  Communication Due Diligence involves at least three steps, which should be reduced to written form and included in the client’s file.

(1) Does the client demonstrate sufficient language and physical ability to communicate effectively with the lawyer and to receive communications from the lawyer?  If the answer is “Yes”, what is the basis of that determination?  If the lawyer has doubt about the client’s communication abilities, proceed to step (2).

(2) Which of the following steps has the lawyer take to deal with communication impediments?:

(a)   Hiring of translator.  Attach CV or other information about the translator’s qualifications.  Has the translator been informed of the need to comply with the lawyer’s ethical obligations, including the duty of confidentiality and the obligation to avoid conflicts of interest?

(b) Use of assistive or language translation device.  Specify the device used.

(3) Other considerations, including social and cultural factors that the lawyer should keep in mind as performing services for the client.

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[1] The opinion does not deal with situations in which the client is mentally impaired.  See footnote 7 referring to Rule 1.14.

For more information, Nathan M. Crystal