ABA issues guidance for lawyers with clients who have communication differences

The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released a formal opinion to guide lawyers in situations when they and their clients do not share a common language, or the client has a physical condition, such as a hearing, speech or vision disability.

Formal Opinion 500 explores lawyers’ duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 of the ABA Model Rules of Professional Conduct, and outlines steps lawyers should consider when faced with communication challenges posed either by language differences or health conditions. The opinion makes it clear that “it is the lawyer’s affirmative responsibility” to ensure the client understands the lawyer’s communications, and that the lawyer understands the client’s communications.

“Communication between a lawyer and a client is both the means by which a client is provided with the advice and explanations needed to make informed decisions, and the vehicle through which the lawyer obtains information required to address the client’s legal matter appropriately,” the opinion said.

It also noted that when the lawyer seeks the services of an interpreter or translator due to either language proficiency or non-cognitive disability, Model Rule 5.3, governs. For example, the lawyer must “make reasonable efforts” to ensure that client confidentiality under Model Rule 1.6 is protected.

Finally, the formal opinion explains, “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.”

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available at www.americanbar.org/groups/professional_responsibility. This opinion marks the 500th formal opinion issued by the ABA since 1924.