What are a New Hampshire lawyer's ethical obligations when representing a client the lawyer cannot communicate with directly in a shared language?

Plain-English summary

The opinion answers a lawyer's inquiry about whether he may ethically represent a client when the two cannot communicate directly in a shared language. The Committee concludes that the language barrier does not by itself bar the representation. The duties at stake are competence (Rule 1.1), client communication (Rule 1.4), and confidentiality (Rule 1.6).

To satisfy those duties, the opinion says the lawyer must use a qualified, impartial interpreter, ideally a bilingual lawyer, a bilingual staff member, or a commercial or community interpreter service. It cautions that using a client's relatives or friends carries substantial risks, because such interpreters may have a personal interest in the outcome or be affected by family or cultural dynamics that bias the interpretation. Whoever serves, the lawyer should be satisfied the interpreter can understand and accurately convey the legal concepts, should allow extra time for meetings, and should ask confirming questions.

On confidentiality, the opinion states that using an interpreter does not diminish the lawyer's Rule 1.6 duty, and the lawyer should make sure the interpreter understands the obligation to keep communications confidential. It flags that whether using a non-employee interpreter waives the attorney-client privilege is a question of law beyond the scope of the opinion.

In practice

The opinion concludes that a New Hampshire lawyer may take on a client who needs an interpreter, so long as the lawyer arranges a qualified, impartial interpreter and protects the client's confidences. It treats interpreter selection as part of competent and adequate communication under Rules 1.1 and 1.4, warns specifically against relying on a client's friends or relatives, and reads Rule 1.6 to require that the interpreter understand the confidentiality obligation. The opinion expressly leaves the privilege-waiver question to other law.

Common questions

Q: Can a New Hampshire lawyer represent a client who does not speak the lawyer's language?

A: Yes. The opinion concludes that the inability to communicate directly does not preclude representation if the lawyer uses a qualified, impartial interpreter and protects confidentiality.

Q: Is it acceptable to use the client's family member or friend as the interpreter?

A: The opinion cautions against it. It explains that relatives or friends may have a personal interest in the outcome, and cultural, social, or family dynamics can bias their interpretation; the lawyer should watch for signs the interpreter is speaking for the client.

Q: Does using an interpreter change the duty of confidentiality?

A: No. The opinion states that the presence of an interpreter does not diminish the Rule 1.6 duty, and the lawyer should ensure the interpreter understands the obligation to keep client communications confidential.

Q: Does the opinion decide whether using an interpreter waives privilege?

A: No. The opinion notes that attorney-client privilege waiver involves questions of law rather than ethics and is beyond the scope of the opinion.

Background and rules framework

The opinion applies three New Hampshire Rules of Professional Conduct, which track the Model Rules: Rule 1.1 (competence), including the New Hampshire requirement that the lawyer gather sufficient facts and develop a strategy in consultation with the client; Rule 1.4 (client communication), including reasonable consultation and explanation adequate to allow informed decisions; and Rule 1.6 (confidentiality of information). It draws on out-of-state guidance, including Arizona and Utah opinions, on confidentiality when interpreters are used.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / NH Rule 1.1 (competence)
• MR 1.4 / NH Rule 1.4 (client communication)
• MR 1.6 / NH Rule 1.6 (confidentiality of information)

Statutes:

• RSA 521-A:1 (interpreters for the deaf; privileged communications)

Other opinions cited:

• Arizona Bar Op. 97-05: confidentiality when using interpreters
• Utah State Bar Op. 96-06: interpreter's understanding of confidentiality
• Restatement (Third) of the Law Governing Lawyers, Sec. 70

See also

• ABA Formal Op. 500: Language Access in the Client-Lawyer Relationship
• Illinois State Bar Op. 03-07: Use of Interpreters
• NY State Bar Op. 1053: Sign-Language Interpreter Without Waiving Privilege

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2009-10-02
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/01/14111508/2009-10-12-REFORMATTED-Representing-Clients-Through-Interpreters.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION
Representing Clients Through Interpreters
Ethics Committee Advisory Opinion #2009-10/02

ABSTRACT:

A lawyer representing a client who needs an interpreter should, ideally, engage the services of a
qualified, impartial third party to ensure compliance with Rule 1.1, Rule 1.4 and Rule 1.6.

QUESTION:
What are the ethical obligations of an attorney representing a client with whom the attorney
cannot communicate directly in a language understood by the client?
BACKGROUND:
An attorney has inquired whether he may ethically represent a client with whom he cannot
communicate directly without the assistance of an interpreter.
RESPONSE:
This inquiry implicates an attorney’s obligations relating to competence (Rule 1.1), client
communications (Rule 1.4) and confidentiality of information (Rule 1.6).
An attorney’s inability to communicate directly with a client in a language understood by the
client does not necessarily preclude the attorney from ethically representing the client. Indeed,
communication problems can arise even where the attorney and the client speak the same
language. In all cases, attorneys must take steps to ensure that the client is provided with
competent representation, that communications with the client are adequate to provide such
competent representation, and that the confidentiality of the client’s information is protected.
Where an attorney cannot communicate directly with the client in a language understood by the
client, the attorney may ethically represent the client if the attorney uses a qualified, impartial
interpreter to conduct adequate communications with the client, and takes appropriate steps to
protect the client’s confidential information.
An attorney’s obligation to provide competent representation to his or her clients requires,
among other things, that the attorney “gather sufficient facts regarding the client’s problem from
the client” and that the attorney “develop a strategy, in consultation with the client, for solving
the legal problems of the client.” Rule 1.1(c)(1) & (3). The attorney’s obligation to communicate
with his or her clients requires, among other things, that the attorney “reasonably consult with
the client about the means by which the client’s objectives are to be accomplished” and that the
attorney “explain the legal and practical aspects of a matter and alternative courses of action to
the extent that such explanation is reasonably necessary to permit the client to make informed
decisions regarding the representation.” Rule 1.4(a)(2) & (b). These obligations require that the
attorney and the client be able to exchange information and understand one another.
When the attorney cannot communicate directly and fluently with the client in a language that
the client can understand-whether the inability to engage in direct communication is because the
attorney and the client do not speak the same language, or because either the client or attorney is
deaf or hearing impaired-the attorney must make use of the services of a qualified, impartial
interpreter. Ideally, the attorney would accomplish this by associating with a bilingual attorney,
working with a bilingual employee or staff member who can interpret communications between
the attorney and client, or utilizing a commercial or community interpreter service. While this is
not always possible, attorneys are cautioned that using relatives or friends of clients as
interpreters carries substantial risks. Such interpreters may have a personal interest in the
outcome of the representation and, therefore, their interpretation may be biased. Often, cultural
and social factors, or family dynamics can interfere with the accuracy of such interpreters’
translation. Attorneys should be aware of these risks, and should take steps that are reasonable
under the circumstances to ensure that the selected interpreter is appropriate. For example,
attorneys should watch for cues that indicate that the interpreter is speaking for the client or
filtering the attorney’s statements rather than impartially conveying the communications.
Regardless of who is selected as an interpreter, attorneys should satisfy themselves that the
interpreter has the capacity to comprehend the legal concepts being discussed and can convey
them accurately. Further, attorneys should take steps to ensure that the client comprehends the
legal concepts and advice presented, and that the attorney understands the information and ideas
conveyed by the client. For example, attorneys should allow for additional time for client
meetings, and ask confirming questions to assure that information is being exchanged accurately
and completely.
The presence of any interpreter does not diminish the attorney’s duty to maintain the
confidentiality of client information. Rule 1.6; see also Arizona Bar Association Ethics Opinion
97-05. Attorneys representing clients through interpreters should ensure that the interpreter has a
clear understanding of the obligation to keep the client’s communications confidential. See Utah
State Bar, Ethics Advisory Opinion 96-06. Attorneys should also be mindful of whether there is
a waiver of the attorney-client privilege when a non-employee interpreter is used, however, such
issues involve questions of law, rather than of ethics, and are therefore beyond the scope of this
opinion.1
It is not the intention of the Ethics Committee in issuing this opinion to in any way discourage
attorneys from representing clients with whom they cannot communicate directly in a language
understood by the client. Rather, it is the intention of the Ethics Committee to provide attorneys
with some helpful guidance for meeting this important need for legal services consistent with
their ethical obligations.
ENDNOTE:

[1] For more information on the attorney-client privilege and communications between attorneys
and their clients through interpreters, see, e.g., Restatement Third, The Law Governing Lawyers,
Sec. 70. With regard to privileged communications through interpreters for the deaf, see RSA
521-A:1L

NH RULES OF PROFESSIONAL CONDUCT:
Rule 1.1
Rule 1.4
Rule 1.6

SUBJECTS:
Interpreters
Client Communication
Competence
Confidentiality

• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its June
17, 2010 meeting.