I am meeting with more clients who have challenges understanding the English language. What are my ethical duties when working with these clients?
I think it is well recognized that a lawyer has a duty to communicate with a client about the important aspects of the representation and ensure that the client understands the legal issues and legal strategies being used to address the matter. Your question really focuses more on the duty of communicating in an understandable manner for clients who might have limited proficiency in the English language.
Dean R. Dietrich, Marquette 1977, is the president-elect of the State Bar of Wisconsin. He is with the law firm of Weld Riley S.C., Wausau, and is past chair of the State Bar Professional Ethics Committee.
The challenges of communicating with a client who has limited proficiencies is one that all lawyers face whether the situation involves the use of a foreign language or the capacity to understand the sometimes-complex legal matters that the client faces. Whatever the situation, the lawyer has an obligation to make sure that the client fully understands the communications and the lawyer’s advice.
SCR 20:1.4 of the Rules of Professional Conduct outlines lawyers’ duty of communication. In summary, lawyers must do the following:
Keep the client reasonably informed about the status of the representation,
Promptly comply with reasonable requests for information made by the client,
Promptly inform the client of any decision or circumstance for or about which the client must give informed consent,
Reasonably consult with the client about the means that will be used by the lawyer to accomplish the objectives identified by the client for the representation, and
Advise the client if there are limitations on the lawyer’s conduct when the lawyer believes that the client is expecting assistance from the lawyer that is not permitted by the Rules of Professional Conduct.
SCR 20:1.4(b) also requires the lawyer to communicate effectively with the client so that the client can make informed decisions:
“(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
The SCR 20:1.4 comment (which is the ABA comment) indicates that the client “should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” The comment also notes that “the guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.”
Within this framework, the lawyer must take all reasonable steps to ensure that the client fully understands the advice the lawyer provides. This might involve hiring an interpreter or asking a law office staff member who is fluent in a particular language to be part of the communications with the client. Confidentiality, of course, is important in these circumstances, so the lawyer must take reasonable steps to ensure that the law office employee or hired interpreter is aware of and promises to maintain the confidentiality of the information discussed with the client. If the lawyer has several clients with limited fluency in English, the lawyer might need to take an introductory course or otherwise study the basics of the language(s) being used to communicate with clients.
Lawyers must take all reasonable and necessary steps to ensure that clients understand what is happening as part of representation. This might include explaining Latin or other specialized terms used when discussing a legal matter or avoiding the use of those terms entirely. Lawyers should think about how they are communicating with their clients and make sure they are understood.
Resources: Working with Clients with Language Limits
The resources listed below might be helpful to lawyers working with clients with limited proficiency in English or other communication barriers.
Wis. Ct. Sys., Services for Interpreters.
Elsa Lamelas, New Interpreter Code of Ethics and New Interpreter Code of Ethics – SCR 63 – Interpreter Code of Ethics Summary, Wis. Law. (March 2003).
Marisol Gonzalez Castillo, Overcoming Language Barriers in Representation, Wis. Law. (March 2021).
Cynthia Herber, Comprende? Tips for Using Interpreters, Wis. Law. (Sept. 2018).
Michael N. Balter & Jason M. Mishelow, Bridging Cultures: Tips for Managing a Multicultural Practice, Wis. Law. (July 2009).
Carmel A. Capati, 10 Tips for Working with Court Interpreters, InsideTrack (Nov. 4, 2009).
Sarah Kober, Find Answers to Clients’ Questions with Free Immigration Resources, InsideTrack (June 6, 2018).
Joe Forward, Disqualification Not Warranted Where Attorney Served as Counsel and Interpreter, InsideTrack (Sept. 18, 2012).
» Cite this article: 95 Wis. Law. 49-50 (November 2022).