ABA Ethics Opinion Clarifies Obligations for Communication Across Language Barriers in Attorney-Client Relationships
A new ethics opinion published by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility,
Formal Opinion 500, addresses a lawyer’s ethical duties in situations where the client’s lack of proficiency in the lawyer’s primary language can cause communication difficulties.
The opinion notes that approximately 61.6 million people in the United States speak a language other than English at home, and of these, 25 million are estimated to have limited English proficiency. In addition, many individuals have mental or cognitive disabilities which may impair their ability to understand spoken communications.
The opinion discusses the lawyer’s obligation to evaluate the need for a translator or interpreter or interpretive device, the appropriate qualifications for a person or service providing translation or interpretive services, and the lawyer’s supervisory duties when engaging or directing a translator or interpreter.
If communications issues hamper the client’s ability to participate intelligently in the representation due to inability to understand the lawyer’s advice and other communications, or the lawyer is unable to ascertain the information needed to competently assist the client, the lawyer must take measures to establish a reasonably effective mode of communication. This may involve employment of a translator or translation technology, if available. The lawyer may not passively leave the decision to the client or thrust the responsibility to arrange for interpretation or translation entirely upon the client. The lawyer must take steps to help the client understand the need for and purpose of an interpreter or translator, and, when reasonably necessary, take steps to secure such services. It may also be necessary to secure the translation of written documents to satisfy the duties of communication and competence.
Once the necessity for interpretation or translation is established, the lawyer should verify that the individual is skilled in the particular language or dialect required, and confirm that the individual has the expertise needed to comprehend the legal concepts/terminology sufficiently to provide the client with accurate information on which to make informed decisions. This can best be accomplished by the use of professional translation/interpretation services. A client’s friend or family member may be able to serve competently in such a role, but the lawyer should keep in mind the possibility such a person may have a bias or agenda that could lead to distortion of their communications with the client.
If obtaining necessary services would place an unreasonable financial burden on the lawyer or client, or if such services are unavailable, the lawyer should ordinarily decline or withdraw from the representation. Another option is association with a lawyer or law firm that can appropriately address the language-access issue, such as through a multilingual lawyer or staff member.
As with any person employed to assist in the practice of law, Rule 5.3 establishes the lawyer’s duty to appropriately supervise the translator/interpreter and to take reasonable efforts to ensure that the interpretive or translation services are provided in a manner compatible with the lawyer’s ethical obligations, particularly the Rule 1.6 duty of confidentiality. The lawyer should communicate directions and take steps to give reasonable assurance that the interpreter or translator understands the lawyer’s ethical duty of confidentiality and agrees to abide by it.
Finally, the duty of competence requires close attention to social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation, including ethnicity, religion, and national origin.
Lawyer Receives Stayed Suspension for Handgun Violation
The Supreme Court of Pennsylvania issued an
Order on October 1, 2021, approving a Joint Petition in Support of Discipline on Consent in the case of Charles C. Daley, Jr.
At some point prior to September 2018, Daley placed a fully loaded handgun, which he owned legally but did not have a permit to carry, in a knapsack. In September 2018, he put some of his legal files in the knapsack and carried it to a courthouse checkpoint in Ocean County, New Jersey. He placed the knapsack on the conveyor belt for the X-ray machine and passed through the metal detector. Not surprisingly, a sheriff assigned to the checkpoint observed the handgun on the X-ray and detained Daley. Daley explained that he had forgotten the firearm was in the knapsack, and had probably carried it into several courthouses without detection. Although he passed a polygraph confirming he was telling the truth, he was arrested and charged with unlawful possession of a handgun and hollow-point bullets. In June 2019, Daley entered into a conditional plea of guilt to the charge of unlawful possession of a handgun, and entered into an extensive 36-month Pre-Trial Intervention Program, under which he was required to attend weekly therapy sessions, undergo periodic risk evaluations, and was prohibited from possessing handguns and other dangerous weapons.
After a disciplinary inquiry, a five-member panel from the New Jersey Disciplinary Review Board recommended that Daley receive a six-month suspension conditional upon a showing of fitness to practice law. Four members of the Review Board dissented and recommended censure. The Supreme Court of New Jersey censured Daley and required him to show proof of his fitness as attested by an approved mental health professional. Daley submitted the requested fitness evaluation, and the New Jersey Office of Attorney Ethics confirmed that he had satisfied the provisions of the Supreme Court’s order.
The Pennsylvania Office of Disciplinary Counsel did not treat the matter as a reciprocal discipline case, but reached an agreement with Daley to file a Joint Petition in Support of Discipline on Consent, in which Daley agreed to a suspension of three months, stayed in its entirety by a period of probation. The agreement cited aggravating factors in Daley’s act of carrying a loaded weapon into a courthouse, thereby creating potential danger to the public, judicial employees, and judges. Mitigating factors included his prompt notification to and cooperation with disciplinary authorities, his lack of a record of discipline, his sincere expression of remorse, and his evidence of good character. The Joint Petition cited previous cases of attorneys convicted of firearms offenses, who had received suspensions ranging from three months to two years. A three-member panel of the Disciplinary Board recommended approval of the Joint Petition and imposition of the agreed-upon discipline.
The Supreme Court approved the Joint Petition and imposed a three-month suspension, stayed in its entirety by a period of probation. Justices Dougherty and Mundy dissented in favor of issuing a rule to show cause why Daley should not be subject to reciprocal discipline in the form of censure, consistent with the decision of the Supreme Court of New Jersey.
Lawyer Who Fed Answers to Client during Zoom Deposition Disqualified, Faces Sanctions
A Massachusetts lawyer has been
disqualified and referred for possible sanctions after admitting that he whispered answers to his client during a Zoom deposition, which she repeated as her own.
In an
Order dated August 31, 2021, Judge Indira Talwani of the United States District Court for the District of Massachusetts found that lawyer Jeffrey Rosin provided answers to his client during a deposition held over Zoom. Both were wearing masks at the time. Counsel for the opposing party heard Rosin whispering an answer and challenged him. He denied coaching his client, but a careful examination of the video recording revealed over fifty instances when Rosin’s client repeated answers when he had prompted her.
Rosin did not deny that he had provided his client with answers, but claimed his actions were rooted in frustration at the actions of opposing counsel. He argued that the conduct should not result in sanctions because opposing counsel had “unclean hands,” and because the client’s answers were truthful. The Court rejected both defenses, and found that Rosin’s actions undermined the truth-seeking purpose of discovery and raised doubt in the minds of litigators and judges as to the effectiveness of remote deposition proceedings, which have become an important tool of the court during the public health crisis.
The opposing party requested a range of sanctions. The Court found that dismissal of the client’s claims and defenses and preclusion of the client’s testimony were too harsh and punished the client for the actions of the lawyer, but agreed that the lawyer should be disqualified from the case and that the opposing party would be allowed to read the lawyer’s coaching answers into the record at trial. The Court did not impose disciplinary sanctions on Rosin directly, but referred the matter to the Presiding Judge for appropriate action under the rules of the court.
What a Difference a Word Makes
A
law review article by
Michael Allan Wolf, a professor at the University of Florida Levin College of Law, reveals that a typographical error in the advance sheet of an opinion by the Supreme Court of the United States continues to echo through the law 93 years later.
In the decision of
Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928), Justice Pierce Butler, writing for a unanimous Court, wrote, “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution.” However, the initial advance sheet in which the decision was published incorrectly transcribed his words as “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” The error was promptly corrected, and the word “properly” appears in the
official U.S. Reports at page 121.
However, the typo took on a life of its own. Wolf identified at least 14 court decisions, the most recent in 2019; 11 appellate briefs; a Supreme Court argument; and books and articles in which the incorrect term appeared. The typo is carried over into electronic reports of the case on Lexis, Thomson Reuters Westlaw,
Cornell University Law School’s Legal Information Institute site, and on the
Justia,
Wikisource,
Original Sources, and
Fastcase sites.
The error is not trivial, as the intended term conveys a broader concept of public power to regulate land use, while the language in the typo has been employed to argue for a more elevated degree of protection of the landowner under substantive due process.
A dispute about a single word has also led to a
$310 million malpractice suit against two law firms.
TerraForm Power LLC, a renewable energy company, sued two law firms over a 2014 purchase agreement dividing the assets of First Wind Holdings, a developer and operator of solar and wind farms, between two buyers: TerraForm, which bought the company’s existing assets, and SunEdison Inc., which acquired its unbuilt development projects. The agreement allows for an accelerated payout in the event of SunEdison’s bankruptcy, which occurred in 2016. TerraForm contends that the agreement stated that “buyers” agreed to this payout, when it was only intended that the provision to apply to “Holdco buyer,” which would only impose liability on SunEdison. A New York judge found TerraForm liable for the payments in 2020.
Both law firms deny the allegations of the complaint and have expressed their intent to defend the lawsuit.
Lawyer/Rideshare Driver Sues Amazon for Wrongful Imprisonment
A lawyer who moonlights as a rideshare driver has
sued Amazon, claiming the company committed wrongful imprisonment when one of its delivery vans boxed his car in for an estimated two to three minutes.
Matthew Donnelly, the principal of his own law firm in Hull, Massachusetts, claims in his
lawsuit that just as he was preparing to pull out of a parking space in front of a restaurant with his rideshare customer, an Amazon delivery van pulled up behind him, blocking his exit. He confronted the driver, who told him he would have to wait a few minutes until the delivery was complete. Another Amazon employee sitting in the van also refused to move it. The driver returned in two to three minutes. Donnelly informed them of his intention to complain to their employer, upon which the employees mocked him and used profane language.
Donnelly’s complaint alleges three counts of Wrongful Imprisonment, Civil Conspiracy to Commit an Unlawful Act, and Caveat Superior. It avers that Donnelly suffered sustained damages including but not limited to the loss of his personal freedom of movement and ability to conduct his business for an appreciable amount of time together with stress, anxiety, apprehension, and humiliation. Jury trial is demanded.
Did you know that the Supreme Court of Pennsylvania is the oldest appellate court in the nation? Established in 1722 (more than 65 years before the U.S. Supreme Court), it has played a crucial role in the history and laws of the Commonwealth for almost 300 years. To commemorate its 300th anniversary, the Court is planning special events aimed at highlighting its unique role and how its decisions impact every Pennsylvanian. Slated for May 17-20, 2022, I encourage you to review the 
