Does using a sign-language interpreter to communicate with a deaf client waive the attorney-client privilege, and may a lawyer use one?

Plain-English summary

The inquirer works for an organization that helps people with disabilities use the legal system and had encountered lawyers who refused to represent deaf clients because they believed that using a sign-language interpreter would breach the attorney-client privilege (¶ 1). The committee first noted that the scope of the attorney-client privilege is a question of law beyond its jurisdiction, but observed that courts have repeatedly held the privilege is not waived by a lawyer's use of an agent to facilitate communication with a client (¶ 4, citing Ackert, Osorio, and Stroh). Using a sign-language interpreter also does not necessarily violate Rule 1.6's duty to safeguard confidential information, because under Rule 5.3 a nonlawyer assistant acts for the lawyer in rendering the lawyer's services (¶ 4).

To preserve the privilege, the committee said the lawyer or firm should ensure the interpreter understands the duty of confidentiality, and that under Rule 5.3 the lawyer may calibrate supervision to the interpreter's experience, taking fewer precautions with a professional interpreter bound by a code of conduct than with a client's family member or friend (¶ 5).

The committee then tied the question to the lawyer's affirmative duties. If using an interpreter would not waive the privilege, then when it is necessary for effective communication it is ethically required under Rule 1.4, which obliges a lawyer to communicate meaningfully with a client (¶ 6). And under Rule 1.1, a lawyer who needs an interpreter to communicate effectively but does not use one could not provide competent representation, because competent handling requires inquiry into and analysis of the factual elements of the matter (¶ 7, citing N.Y. City 1995-12, Utah Op. 96-06, and California Op. 1984-77).

In practice

Under the New York rules as they stood at the time of the opinion, the committee resolved a question lawyers had treated as a confidentiality obstacle by reframing it as an affirmative duty. Because courts treat communication-facilitating agents as inside the privilege, and Rule 5.3 treats an interpreter as a nonlawyer assistant acting for the lawyer, the committee concluded that using a sign-language interpreter does not by itself waive the privilege or violate Rule 1.6. Where such an interpreter is necessary for effective communication, the committee held that Rules 1.4 and 1.1 make using one ethically required, and that the lawyer or firm should ensure the interpreter understands the confidentiality obligation, with supervision under Rule 5.3 scaled to the interpreter's experience.

Common questions

Q: Does bringing a sign-language interpreter into a client meeting waive the attorney-client privilege?

A: The committee treats the scope of the privilege as a question of law it cannot decide, but notes courts have repeatedly held that using an agent to facilitate communication does not waive the privilege (¶ 4).

Q: Can a lawyer refuse to represent a deaf client because of the interpreter?

A: The opinion concludes the opposite: if an interpreter is necessary for effective communication, Rules 1.4 and 1.1 make using one ethically required, so the need for an interpreter is not a basis to decline (¶¶ 6-7).

Q: What should the lawyer do about the interpreter and confidentiality?

A: Under Rule 5.3, the lawyer or firm should ensure the interpreter understands the duty to keep client information confidential, and may take fewer precautions with a professional interpreter bound by a code of conduct than with a client's family member or friend (¶ 5).

Background and rules framework

The opinion interprets New York Rule 1.6 (confidentiality of information) alongside Rule 1.4 (communication), Rule 1.1 (competence), and Rule 5.3 (supervision of nonlawyer assistants), corresponding to ABA Model Rules 1.6, 1.4, 1.1, and 5.3. Comment [3] to Rule 1.6 frames confidentiality as resting on the evidentiary privilege, the work-product doctrine, and the ethical duty; the committee addresses only the ethical duty, leaving the privilege itself to the courts.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY RPC 1.6 (confidentiality)
• MR 1.4 / NY RPC 1.4 (communication)
• MR 1.1 / NY RPC 1.1 (competence)
• MR 5.3 / NY RPC 5.3 (supervision of nonlawyer assistants)

Statutes:

• N.Y. Judiciary Law art. 12 (court interpreters; interpreters for deaf parties or witnesses)

Cases:

• United States v. Ackert, 169 F.3d 136 (2d Cir. 1999), third party aiding comprehension does not destroy privilege
• People v. Osorio, 75 N.Y.2d 80 (1989), communications through an agent to facilitate communication are generally privileged
• Stroh v. General Motors Corp., 213 A.D.2d 267 (1st Dept 1995), presence of an elderly client's daughter did not vitiate privilege

Other opinions cited:

• N.Y. City 1995-12: foreign-language and sign interpreters
• Utah Op. 96-06; California Op. 1984-77: foreign-language interpreters

See also

• ABA Formal Op. 500: Language Access With Clients
• ABA Formal Op. 506: Nonlawyer Assistants & Intake
• NY State Bar Op. 1070: Joint clients' confidentiality and file access

Source

• Landing page: https://nysba.org/ethics-opinion-1053/