What are a Utah lawyer's duties when the lawyer cannot communicate with a client in a language the client understands?

Plain-English summary

Opinion 96-06 addressed the ethical obligations of a lawyer who represents a client when the lawyer cannot communicate directly with the client in a language the client clearly understands. The Committee concluded that a lawyer need not have personal knowledge of the client's language, but the lawyer must be able to communicate adequately with the client, as required by the duty of communication. The opinion extended the same analysis to clients who are speech- or hearing-impaired.

Where direct communication in a language the client understands is not possible, the opinion said the lawyer should communicate through an interpreter skilled in the client's particular language or dialect, for example by associating with a bilingual lawyer or working with a staff member who can assist. The Committee cautioned that the lawyer must ensure the lawyer and client are communicating through the interpreter, rather than the interpreter giving legal advice independent of the lawyer, which would assist the unauthorized practice of law in violation of Rule 5.5(b).

The opinion also flagged related duties: the interpreter should understand the obligation to keep the client's communications confidential, the lawyer should select an interpreter who has no personal interest in the outcome (warning that close friends and family may create problems under Rules 1.6 and 1.7), and the lawyer should consider whether using a non-employee interpreter could waive the attorney-client privilege. It noted the lawyer may generally bill for interpreter services consistent with Rule 1.5, subject to exceptions such as appointed counsel for an indigent defendant and possible obligations under the Americans with Disabilities Act.

Currency note

This opinion was issued in 1996, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

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

A: No. The opinion concluded a lawyer need not have any personal knowledge of the client's language, but the lawyer must be able to communicate adequately with the client under the duty of communication.

Q: How did the opinion say a lawyer should handle a language barrier?

A: It said the lawyer should communicate through an interpreter skilled in the client's language or dialect, such as a bilingual lawyer or a staff member, while ensuring the interpreter relays communications rather than giving independent legal advice.

Q: What confidentiality and conflict concerns did the Committee raise about interpreters?

A: The opinion said the interpreter should understand the duty to keep communications confidential, the lawyer should avoid interpreters with a personal interest in the outcome (noting close friends and family may raise issues under Rules 1.6 and 1.7), and the lawyer should consider whether using a non-employee interpreter could waive the attorney-client privilege.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 1.4 (communication), which requires a lawyer to keep the client reasonably informed and to explain matters to the extent reasonably necessary for the client to make informed decisions. It connected the duty to communicate to the duties of competence and diligence (Rules 1.1 and 1.3), and identified the unauthorized-practice limit of Rule 5.5(b), the confidentiality duty of Rule 1.6, the conflict rule 1.7, and the fee rule 1.5. These correspond to ABA Model Rules 1.4, 1.1, 5.5, 1.6, 1.7, and 1.5.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / Utah RPC 1.4 (communication)
• MR 1.1 / Utah RPC 1.1 (competence)
• MR 5.5 / Utah RPC 5.5(b) (unauthorized practice)
• MR 1.6 / Utah RPC 1.6 (confidentiality) and MR 1.7 / Utah RPC 1.7 (conflicts)

Other opinions cited:

• California Formal Op. 1984-77: representing a client despite a language barrier
• ABCNY Formal Op. 1995-12: use of interpreters in the lawyer-client relationship

See also

• ABA Formal Op. 500: Language Access With Clients
• ABA Formal Op. 96-404: Client Under a Disability

Source

• Landing page: https://www.utahbar.org/ethics-opinions/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1996-06.pdf

Original opinion text

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

Utah Ethics Opinions the same language. (fn4)
1996. It is the responsibility of any attorney to gather all of the
relevant facts, undertake reasonable research in an effort to
96-06. USB EAOC Opinion No. 96-06 ascertain legal principles and make an informed decision as
to a course of conduct based upon an intelligent assessment
Utah State Bar
of the client's problems. A language barrier does not reduce
the attorney's duty to communicate adequately with the
Ethics Advisory Opinion Committee
client, as required by Rule 1.4. If direct communication in a
language clearly understood by the client is not possible,
Opinion No. 96-06
the attorney must take into account the fact that means other
Approved July 3, 1996 than direct communication will be required to discuss the
client's case and to meet the attorney's responsibilities. The
Issue: What are the ethical obligations if an attorney means by which an attorney may do this are varied.
undertakes representation of a client when the attorney is
not able to communicate directly with the client in a On any matter that requires client understanding, the
language clearly understood by that client? attorney must take all reasonable steps to insure that the
client comprehends the legal concepts involved and the
Opinion: An attorney need not have any personal advice given by the attorney. The attorney must take all
knowledge of language skills relating to the language reasonable steps to insure that the attorney understands
ability of the client. It is necessary, however, for an attorney what the client is saying, so that the attorney can make
to be able to communicate adequately with the client. (fn1) intelligent judgments about the case and so that the client
Therefore, consideration should be given to language can make informed decisions. If the attorney cannot
impediments that would materially affect the attorney's communicate fluently in the client's own language, the
ability to communicate adequately in the specific attorney should communicate through an interpreter skilled
circumstances of the client's case. The method by which in the client's particular language or dialect. The attorney
this must be done will depend upon the circumstances of may accomplish this by associating with a bilingual
each situation. (fn2) attorney who can assist with the language problem or by
working with an employee or staff member who can assist
Discussion: A lawyer must be sensitive to the non-English the attorney with the language problem. However, an
or limited English-speaking client's communication attorney must be cautious in insuring that the attorney and
difficulties in explaining legal problems and in client are communicating with each other through the
understanding the legal advice to be provided by the interpreter, rather than the interpreter giving legal advice
lawyer. A lawyer must also be sensitive to the lawyer's independent of the attorney. To allow such a result would
limitations in understanding communications that come be to assist in the unauthorized practice of law in violation
from a non-English or limited English-speaking client. Such of Rule 5.5(b).
sensitivity is an important aspect of attorney competence, as
well as other duties and obligations of attorneys requiring On any matter that requires the use of an interpreter, the
communication with clients. In this context, a lawyer must attorney must take all reasonable steps to insure that other
also be sensitive to the limited communication abilities of ethical considerations such as client confidentiality and
hearing-impaired or speech-impaired clients. conflict of interest are addressed. For example, the
interpreter should have a clear understanding of the
An attorney must have or must acquire sufficient time, obligation to keep the client's communications confidential.
resources and ability to apply the sufficient learning, skill An attorney should use care in selecting an interpreter to
and diligence necessary to discharge the duties arising from insure that the interpreter does not have a personal interest
the attorney-client relationship. (fn3) However, the inability in the outcome of litigation. Attorneys are cautioned that
to communicate directly with the client in a language use of the client's close friends and family members may
clearly understood by the client does not always preclude often give rise to such potential problems under Rules 1.6
an attorney from discharging such duties. Clearly, a client and 1.7.
has the right to retain the services of an attorney, knowing
that direct communication with that particular attorney may Attorneys should also be aware of the issue of whether
be limited or impossible. Also, clearly, difficulty in there would be a waiver of the attorney-client privilege
communication can occur even between those who speak when a non-employee interpreter is used and should review

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the law governing this issue. (fn5)
Finally, attorneys should be sensitive to the possibility that
non-English speaking clients may not readily understand
legal principles described by the attorney, because the
non-English speaking client may interpret communications
based on a different social and cultural foundation than that
assumed by the attorney. Attorneys should, therefore, take
greater care in explaining complex legal communications to
clients who are non-English speaking, because the client
may have no social or cultural background or understanding
of the United States, so as to put the attorney's
communications into proper context.
It should be noted that the attorney may generally bill the
client for interpreter services, so long as the attorney acts
consistently with Rule 1.5. There are some exceptions to
this, such as representation as appointed counsel for an
indigent criminal defendant, and the Americans with
Disabilities Act may require that attorneys provide
interpreter services for hearing-impaired clients free of
charge.
Footnotes

1. Communication.
   (a) A lawyer shall keep a client reasonably informed about
   the status of a matter and promptly comply with reasonable
   requests for information.
   (b) A lawyer shall explain a matter to the extent reasonably
   necessary to enable the client to make informed decisions
   regarding the representation.
   Utah Rules of Professional Conduct 1.4.
2. The analysis and general conclusion of this opinion
   apply as well to dealing with clients who are speech- or
   hearing-impaired.
3. Id. Rules 1.1, 1.3.
4. See Cal. St. Bar Comm. on Prof. Responsibility and
   Conduct, Formal Op. 1984-77, 1984 WL 5101; see also
   Assoc. of Bar of N.Y.C. Comm. on Prof. and Jud. Ethics,
   Formal Op. 1995-12, 1995 WL 607777.
5. Whether the privilege would be waived in any particular
   set of circumstances is a question of law and, therefore,
   beyond the scope of this opinion.
   Rules Cited:
   1.41.61.75.5