American Bar Association: Language Access in the Client-Lawyer Relationship

[ 0 ] November 17, 2021 |

As the population of the United States continues to become ever more diverse and multicultural, communication issues stemming from language differences, as well as physical disabilities, are increasing. Between1990 and 2013, the population of persons having limited English proficiency grew 80 percent, from nearly 14 million to 25.1 million. The adoption of the Americans with Disabilities Act in 1990, coupled with ongoing advocacy by and on behalf of persons with disabilities, has led to the profession’s growing awareness that clients seeking representation may not be able to hear, speak, or read without accommodation. For these reasons, with increasing frequency lawyers are called upon to communicate with clients who do not speak the lawyer’s native language or speak the lawyer’s language with limited proficiency, or for whom the conventional written or spoken word is not an accessible form of communication.

The American Bar Association has issued a notification on October 6, 2021 which is lawyers’ official recognition that they have an ethical duty to provide adequate language services to their Limited English Proficiency clients.

According to this notification, a lawyer’s fundamental obligations of communication and competence are not diminished 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 non-cognitive physical condition, such as a hearing, speech, or vision disability. Under such circumstances, a lawyer may be obligated to take measures appropriate to the client’s situation to ensure that those duties are properly discharged.

When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator2 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.

Read the American Bar Association notification here.

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