Can an Alabama lawyer advertise the ability to communicate in a foreign language when a nonlawyer employee, not the lawyer, will actually do the communicating?

Plain-English summary

The Disciplinary Commission addressed whether a lawyer may advertise an ability to communicate in a foreign language when a nonlawyer employee, rather than the lawyer, will handle the foreign-language communication. The opinion concludes the lawyer may do so only if the advertisement makes clear that the employee, not the lawyer, will communicate with the client in that language.

The opinion applies Rule 7.1, which bars false or misleading communications about a lawyer's services. A lawyer cannot imply a personal ability to speak the language when in fact an employee will be doing so; the advertisement must state with particularity whether the lawyer or an employee has the ability. If the advertisement is published in the foreign language, the disclaimer required by Rule 7.2(e) must also be translated into that language; if the advertisement uses both English and the foreign language, the disclaimer must appear in both.

The opinion then turns to supervision and the unauthorized practice of law. Under Rule 5.3, the lawyer is responsible for the conduct of the nonlawyer employee as if the lawyer engaged in it, so the lawyer must ensure that information is accurately relayed both ways between client and lawyer; an inaccurate relay that adversely affects the client's rights could be an ethics violation. Under Rule 5.5(b), the lawyer must avoid assisting the employee in the unauthorized practice of law: legal advice relayed through a translator must be the lawyer's advice, not the translator's, so the lawyer should be present during client conferences, should not let the employee meet privately with the client, and should seek the court's approval to use the employee as a translator for court appearances.

In practice

The opinion holds that, under the Alabama rules as they stood at the time of the opinion, a lawyer may advertise a nonlawyer employee's foreign-language ability if the advertisement attributes that ability to the employee rather than the lawyer, and the Rule 7.2(e) disclaimer is carried in the advertised language (and in English where both are used). It applies Rule 5.3 to make the lawyer responsible for the accuracy of the employee's two-way communication with the client, and Rule 5.5(b) to require that any legal advice be the lawyer's own, with the lawyer present at conferences and the court's approval sought before using the employee to translate in court.

Common questions

Q: Can I advertise that my firm speaks Spanish if it is my paralegal who speaks it, not me?

A: Yes, if the advertisement makes that clear. The opinion concludes that under Rule 7.1 a lawyer may not imply a personal ability to speak the language; the advertisement must state with particularity whether the lawyer or an employee has the ability.

Q: Does the required disclaimer have to be in the foreign language?

A: Yes, when the advertisement is in that language. The opinion concludes the Rule 7.2(e) disclaimer must be translated into the advertised language, and must appear in both the foreign language and English if the advertisement uses both.

Q: Am I responsible if my employee mistranslates something to a client?

A: Yes. The opinion concludes that under Rule 5.3 the lawyer is responsible for the employee's conduct as if the lawyer engaged in it, and a failure to accurately relay information that adversely affects the client's rights could be an ethics violation.

Q: What must I do to avoid aiding the unauthorized practice of law through a translator?

A: The opinion concludes that under Rule 5.5(b) any legal advice must be the lawyer's, not the translator's. The lawyer should be present during client conferences, should not allow the employee to meet privately with the client, and should seek the court's approval to use the employee as a translator in court.

Background and rules framework

The opinion interprets Rule 7.1 (communications concerning a lawyer's services, Model Rule 7.1), which prohibits false or misleading communications, and Rule 7.2(e) (advertising disclaimer, Model Rule 7.2), which the opinion requires to be carried in the advertised language. It also applies Rule 5.3 (responsibilities regarding nonlawyer assistants, Model Rule 5.3), which makes the supervising lawyer responsible for the employee's conduct, and Rule 5.5(b) (unauthorized practice of law, Model Rule 5.5), which bars assisting a nonlawyer in the unauthorized practice of law.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Ala. R. Prof. C. 7.1 (false or misleading communications)
• Model Rule 7.2 / Ala. R. Prof. C. 7.2(e) (required advertising disclaimer)
• Model Rule 5.3 / Ala. R. Prof. C. 5.3 (responsibilities regarding nonlawyer assistants)
• Model Rule 5.5 / Ala. R. Prof. C. 5.5(b) (unauthorized practice of law)

See also

• ABA Ethics Op. 500: Language Access in the Client-Lawyer Relationship
• ABA Ethics Op. 506: Responsibilities Regarding Nonlawyer Assistants
• ABA Ethics Op. 10-457: Lawyer Websites

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/2008-01/
• Original PDF: https://www.alabar.org/assets/2019/02/2008-01-1.pdf

Original opinion text

ETHICS OPINION RO-2008-01

Advertising Ability to Communicate In A Foreign Language

QUESTION:

May an attorney advertise the ability to communicate in a foreign language if an employee of the attorney, and not the attorney, will be communicating with clients in the second language? If so, what ethical obligations and responsibilities are imposed upon the supervising attorney?

ANSWER:

An attorney may advertise the ability of a nonlawyer employee to communicate in a foreign language if the advertisement makes it clear that the nonlawyer employee and not the attorney will be communicating with the client in the foreign language. Additionally, if the advertisement is placed using the foreign language being advertised, then the disclaimer required by Rule 7.2(e) must also be in that same foreign language. If the advertisement being placed uses both English and the foreign language, then the disclaimer must be communicated through both the foreign language and English. Finally, any attorney using a nonlawyer employee to communicate with a client in a foreign language assumes all responsibility for the accuracy of the information relayed between the nonlawyer employee and client.

DISCUSSION:

Rule 7.1, Alabama Rules of Professional Conduct, provides, in pertinent part, as follows:

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES. A lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

As such, an attorney cannot imply an ability to speak a foreign language when, in fact, it is an employee of the attorney that will be communicating with the client in the foreign language. Rather, if the attorney wishes to advertise the fact that his law firm can communicate with a client in a particular language, the advertisement must state with particularity whether the attorney has the ability to communicate in the foreign language or whether an employee has that ability. Additionally, if the advertisement is going to be published via the foreign language, the disclaimer required by Rule 7.2(e) must also be translated into the foreign language. If an advertisement is going to be published using both English and the foreign language, then the disclaimer should be included using both the foreign language and English formats.

Any attorney using a nonlawyer employee to communicate with a client in a foreign language should also be aware of Rule 5.3, Ala. R. Prof. C., which provides as follows:

RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS. With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer, if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Under Rule 5.3, an attorney is held responsible for the conduct of any nonlawyer employee to the same extent as if the attorney engaged in the conduct himself. In the instant situation, by using a nonlawyer employee to communicate with a client, the lawyer is under a duty to ensure that information received from the client is accurately communicated to the lawyer through the nonlawyer employee. Likewise, the lawyer is also responsible for ensuring that the nonlawyer employee accurately relays the lawyer's communications to the client. Any failure by the nonlawyer employee to accurately relay information between the client and the lawyer that adversely affects the rights or interests of the client could constitute an ethics violation by the lawyer.

Furthermore, pursuant to Rule 5.5(b), Ala. R. Prof. C., the lawyer employing the nonlawyer employee as a translator must also be careful to avoid assisting the nonlawyer employee in the performance of activities that constitute the unauthorized practice of law. For example, while legal advice may be relayed to a client through the use of a translator, the legal advice given must be that of the lawyer and not the translator. As such, the lawyer should always be present during conferences with the client and should not allow the nonlawyer employee to meet privately with the client. In addition, when making court appearances, the approval of the court should be sought in order to use the nonlawyer employee to translate information between the client and the lawyer and/or the court.

JWM/s 6/30/08