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ABA Guidance Aims to Aid Lawyers Confronted With Communications Challenges

October 6, 2021 by Dan McCue
Gavel and scales

CHICAGO — The American Bar Association released a formal opinion Wednesday intended to aid lawyers in situations in which they and their clients do not share a common language or the client has a condition or disability that makes communication difficult.

Formal Opinion 500 was created by the ABA’s Standing Committee on Ethics and Professional Responsibility after a review of the association’s Model Rules for Professional Conduct.

It outlines steps lawyers should consider when faced with communication challenges posed either by language differences or health conditions, particularly those related to hearing, speech or vision. 

The opinion states “it is the lawyer’s affirmative responsibility” to ensure the client understands the lawyer’s communications, and that the lawyer understands the client’s communications.

“Communication between a lawyer and a client is both the means by which a client is provided with the advice and explanations needed to make informed decisions, and the vehicle through which the lawyer obtains information required to address the client’s legal matter appropriately,” the opinion said.

It also noted that when the lawyer seeks the services of an interpreter or translator due to either language proficiency or non-cognitive disability, Model Rule 5.3, governs. 

The provision covers issues stemming from a lawyer hiring a nonlawyer to help with a legal matter.

For example, the lawyer must “make reasonable efforts” to ensure that client confidentiality is protected.

“When there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications, and that the lawyer understands the client’s communications, bearing in mind potential differences in cultural and social assumptions that might impact meaning,” the opinion says.

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