The Risk Manager, Winter 2011

As immigration has increased in Kentucky, lawyers are more frequently involved with clients that require interpreters for effective communication. This development invokes the Kentucky Rules of Professional Conduct on Competence (Rule 1.1), Client Communications (Rule 1.4), and Confidentiality of Information (Rule 1.6).

An effective interpreter is essential for competent representation and clear communications. Additionally, lawyers must ensure that the interpreter understands the obligation to keep the client’s communications confidential. If a non-employee interpreter is used, the risk that the attorney-client privilege may be waived must be considered.

The New Hampshire Bar Association Ethics Committee Opinion # 2009/10-2 contains this helpful advice on how to employ interpreters:

When the attorney cannot communicate directly and fluently with the client in a language that the client can understand—whether the inability to engage in direct communication is because the attorney and the client do not speak the same language, or because either the client or attorney is deaf or hearing impaired—the attorney must make use of the services of a qualified, impartial interpreter. Ideally, the attorney would accomplish this by associating with a bilingual attorney, working with a bilingual employee or staff member who can interpret communications between the attorney and client, or utilizing a commercial or community interpreter service. While this is not always possible, attorneys are cautioned that using relatives or friends of clients as interpreters carries substantial risks. Such interpreters may have a personal interest in the outcome of the representation and, therefore, their interpretation may be biased. Often, cultural and social factors, or family dynamics can interfere with the accuracy of such interpreters’ translation. Attorneys should be aware of these risks, and should take steps that are reasonable under the circumstances to ensure that the selected interpreter is appropriate. For example, attorneys should watch for cues that indicate that the interpreter is speaking for the client or filtering the attorney’s statements rather than impartially conveying the communications.