Is a lawyer responsible for a sign-language interpreter's conduct, and do client communications stay confidential when an interpreter is present?

Plain-English summary

A lawyer expected to need a sign-language interpreter to communicate with a hearing-impaired client on a Social Security disability matter, and asked whether Rule 5.3 (responsibilities regarding nonlawyer assistants) reaches such an interpreter, and whether communications in the interpreter's presence are protected by Rule 1.6 (confidentiality).

On the first question, the Committee concludes Rule 5.3 applies. Finding no Illinois case directly on interpreters, it reasons by analogy to In re Estate of Divine v. Giancola, which recognized a lawyer's responsibility for a paralegal's acts. An interpreter retained to help the lawyer communicate with a client is analogous to a nonlawyer paraprofessional acting for the lawyer in rendering professional services, so Rule 5.3 imposes on the lawyer the duty to make reasonable efforts to ensure the interpreter's conduct is compatible with the lawyer's professional obligations.

On the second question, the Committee concludes the communications stay confidential. Rule 1.6 protects client confidences and secrets, and Divine recognized that the presence of an attorney's employee, such as a secretary or law clerk, does not destroy the attorney-client privilege. The Illinois Interpreter's Privilege provision (735 ILCS 5/8-911) likewise states that an otherwise-privileged communication is not waived by the interpreter's presence. The Committee holds that communications between a lawyer and a hearing-impaired client through a sign-language interpreter must be protected by Rule 1.6, and that Rule 5.3 requires the lawyer to make reasonable efforts to ensure the interpreter does not breach those confidences.

Currency note

This opinion was issued in 2004, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion holds that an interpreter retained to communicate with a client is a nonlawyer assistant under Rule 5.3, so the lawyer must take reasonable steps to ensure the interpreter's conduct (including confidentiality) is compatible with the lawyer's obligations, and that the interpreter's presence does not waive the client's Rule 1.6 protection or the underlying privilege. The Committee identifies the interpreter's role in helping render the lawyer's services as the factor that brings the interpreter within Rule 5.3.

Common questions

Q: Does Rule 5.3 cover an interpreter a lawyer uses to talk with a client?

A: Yes. The opinion concludes that a sign-language interpreter retained to communicate with a hearing-impaired client is a nonlawyer assistant under Rule 5.3, so the lawyer must take reasonable steps to ensure the interpreter's conduct meets the lawyer's professional obligations.

Q: Are communications confidential when an interpreter is in the room?

A: Yes. The opinion concludes that communications between the lawyer and the client in the interpreter's presence are protected by Rule 1.6, and that the interpreter's presence does not destroy the attorney-client privilege.

Q: What supports keeping the communication privileged with an interpreter present?

A: The opinion cites Divine v. Giancola (the presence of an employee like a secretary does not destroy privilege) and the Illinois Interpreter's Privilege provision, 735 ILCS 5/8-911, under which an otherwise-privileged communication is not waived by the interpreter's presence.

Background and rules framework

The opinion interprets Illinois Rule 5.3 (responsibilities regarding nonlawyer assistants, corresponding to Model Rule 5.3) and Rule 1.6 (confidentiality of information, corresponding to Model Rule 1.6), read alongside the Illinois Interpreter's Privilege provision. The analysis turns on treating an interpreter as a nonlawyer assistant whose presence does not waive confidentiality.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.3 / Illinois Rule 5.3 (responsibilities regarding nonlawyer assistants)
• Model Rule 1.6 / Illinois Rule 1.6(a) (confidentiality of information)

Statutes:

• 735 ILCS 5/8-911 (Illinois Interpreter's Privilege; presence of interpreter does not waive privilege)

Cases:

• In re Estate of Divine v. Giancola, 263 Ill. App. 3d 799, 635 N.E.2d 581 (1st Dist. 1994), lawyer responsibility for nonlawyers and privilege in their presence

See also

• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
• CA COPRAC Op. 1979-050: Ensuring Nonlawyer Staff Preserve Confidences

Source

• Landing page: https://www.isba.org/ethics/opinions/0307