Sunday, October 10, 2021

ABA issues new formal opinion on the duty of communication with a client when the attorney and client have difficulties understanding each other -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility recently issued a new Formal Opinion (No. 500, October 6, 2021) on an attorney’s duty to communicate with a client when the lawyer and client have difficulty understanding each other.  The summary of the opinion reads as follows:

Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. 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 noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished.  In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator 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.

You can read the full opinion here.   

Ethical Grounds has a comment on the opinion here.  The ABA Journal has a story here.

UPDATE 10/30/21:  The Legal Ethics Advisor has a comment on the opinion here.

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