Can a lawyer competently represent a client they cannot speak with directly in a shared language?

Currency note

This opinion was issued in 1984, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 6-101, the competence provision now addressed by current Rule 1.1 (and the Model Rule 1.1 counterpart). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether a lawyer acts competently in undertaking a representation when the lawyer cannot communicate directly with the client in a language the client clearly understands. The committee concluded that, as a general rule, the lawyer need not personally have the client's language skills, but the lawyer must be able to communicate adequately with the client, and must give consideration to language impediments that would materially affect that ability. The method of doing so depends on the circumstances of each case.

The committee located the duty in former Rule 6-101 (competence), noting that a lawyer must have or acquire sufficient time, resources, and ability to apply the learning, skill, and diligence the representation demands, and observing that communication difficulty can arise even between speakers of the same language. It emphasized that the inability to communicate directly does not by itself prevent the lawyer from discharging these duties, and that even where a client chooses a lawyer knowing direct communication will be limited, the lawyer's duty to communicate adequately is not reduced. Drawing on Smith v. Lewis, it described the lawyer's responsibility to gather the relevant facts, research the law, and make an informed assessment.

The committee concluded that on any matter requiring the client's understanding, the lawyer must take all reasonable steps to ensure the client comprehends the legal concepts and advice, whatever the mode of communication, so the client can make an informed decision. It identified practical means: an interpreter skilled in the particular language or dialect, a person skilled in sign language or in translating documents, or referring the matter to or associating a bilingual attorney, as a lawyer would when a matter calls for skills outside the lawyer's own experience. A footnote noted that translation may be essential for critical documents such as a contingency fee agreement, a general release, or a written conflict waiver.

Common questions

Q: Does a California lawyer have to speak the client's language to take the case?

A: No. The committee concluded that, as a general rule, the lawyer need not personally have the client's language skills, but the lawyer must be able to communicate adequately with the client to render competent service under former Rule 6-101.

Q: How can the lawyer communicate adequately across a language barrier?

A: Per the opinion, the lawyer may use an interpreter skilled in the relevant language or dialect, a person skilled in sign language or document translation, or may refer the matter to or associate a bilingual attorney, as the circumstances require.

Q: Does it matter that the client knowingly chose a lawyer they cannot speak with directly?

A: No. The committee concluded that even where the client selected the lawyer knowing direct communication would be limited or impossible, that does not reduce the lawyer's duty to communicate adequately and ensure the client can make an informed decision.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 6-101 (competence), which required a lawyer to apply the learning, skill, and diligence necessary to discharge the duties of the representation and to have or acquire sufficient time, resources, and ability to do so. The committee linked the competence duty to the broader set of California rules requiring communication (citing former Rules 2-107(B)(9), 2-108(A), 2-111(C)(5), 4-101, 5-101, and 5-102). The subject corresponds today to the duty of competence (Model Rule 1.1) and is closely tied to the duty to keep a client reasonably informed (Model Rule 1.4).

Citations and references

Rules of Professional Conduct:

• Former California Rule 6-101 (competence)
• Former California Rules 2-107(B)(9), 2-108(A), 2-111(C)(5), 4-101, 5-101, 5-102 (duties requiring communication)

Statutes:

• Business and Professions Code section 6147 (contingency fee agreement; cited as a critical document needing translation)
• Civil Code section 1541 (general release of claims; cited as a critical document needing translation)

Cases:

• Smith v. Lewis (1975) 13 Cal.3d 349, duty to gather facts, research the law, and make an informed assessment

See also

• CA Ethics Op. 1983-74: Client Perjury in a Civil Bench Trial

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1984-77.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1984-77

ISSUE:

Is an attorney acting competently if the attorney undertakes representation of a client when the attorney is not able to communicate directly with the client in a language clearly understood by that client?

DIGEST:

As a general rule, the attorney need not have any personal knowledge or language skills relating to the language ability of the client. It is necessary, however, for the attorney to be able to communicate adequately with the client. Therefore, consideration should be given to language impediments which would materially impact on the attorney's ability to communicate adequately in the specific circumstance. The method in which this is done depends upon the circumstances of each situation.

AUTHORITIES INTERPRETED:

Rule 6-101 of the Rules of Professional Conduct of the State Bar of California.

DISCUSSION

In the last several decades, California's non-English speaking population has increased dramatically. The law itself has become much more complex, necessitating the need for better and more complex communications with non-English speakers and non-native speakers of the English language. A lawyer should, therefore, be sensitive to the non-English or limited English-speaking client's communication difficulties in explaining his or her legal problem and in understanding the legal advice to be provided by the lawyer. Such sensitivity is an important aspect of attorney competence under rule 6-101, as well as all other duties and obligations of attorneys requiring communication. (See Rules Prof. Conduct, rules 2-107(B)(9), 2-108(A), 2-11 l(C)(5), 4-101, 5-101, and 5-102.)

An attorney must have or must acquire sufficient time, resources and ability so that he can apply the sufficient learning, skill and diligence necessary to discharge the duties arising from the attorney's employment or representation (rule 6-101). However, the inability to communicate directly with the client in a language clearly understood by the client does not always preclude the attorney from discharging the attorney's duties within the meaning of the preceding sentence. It should be noted that difficulty in communication can occur even between those who speak the same language, since a client may not immediately grasp the import of the words used by counsel

It is the responsibility of the attorney to gather all of the relevant facts, undertake reasonable research in an effort to ascertain legal principals and make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. (See Smith v. Lewis (1975) 13 Cal.3d 349.) The client may have selected the attorney knowing that direct communication may be limited, or even not possible. However, this does not reduce the attorney's duty to communicate adequately. If direct communication in a language clearly understood by the client is not possible, the attorney must take into account the fact that means other than direct communication will be required to discuss the client's case and to meet the responsibilities noted above. Although relevant, the means used are not controlling with respect to the issue of lawyer competency; however, adequate communication is necessary in order to render "competent" legal services.

On any matter which requires client understanding, the attorney must take all reasonable steps to insure that the client comprehends the legal concepts involved and the advice given, irrespective of the mode of communication used, so that the client is in a position to make an informed decision. Appreciation of the client's language may have a substantial bearing on the capability of the attorney to communicate with the client concerning such facts, legal concepts and advice. The attorney may need to communicate in a particular language or dialect and for this purpose may need to use an interpreter skilled in a particular language or dialect. Other means reasonably available to counsel, such as a person skilled in sign language or in translating a written document, may need to be used in order for counsel to act competently in a particular case.1 Another alternative is to refer the case to or associate a bilingual attorney who can assist with the language problem, as is done in other areas when a lawyer is confronted with a matter calling for skills outside his or her personal experience or ability.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 For example, such a translation may be essential for critical documents, such as a contingency fee agreement (Bus. & Prof. Code, 6147), a general release of claims (Civ. Code, 1541), or a written waiver of a conflict of interest (Rules Prof. Conduct, rule 4-101).