For Lawyers, Effective Communications Requirements are More Than Just a Matter of ADA Compliance: They are Now a Matter of Legal Ethics Too

Many times before in this blog, such as here and here and here, we have discussed effective communication rules. On October 6, 2021, the American Bar Association issued Formal Opinion 500. Formal Opinion 500, here, now takes effective communication and makes it a matter of professional responsibility and a matter of legal ethics that attorneys must follow. This blog entry discusses Formal Opinion 500 and then offers my thoughts/takeaways on it, which are also the categories for this blog entry. While Formal Opinion 500 extends beyond persons with disabilities, the focus of this blog entry is just on persons with disabilities.

 

I

Formal Opinion 500

 

1. Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client lawyer relationship.
2. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language or the client has a hearing, speech, or vision disability or other noncognitive physical condition, the duties of communication and competence are undiminished. In such a situation, the lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged.
3. When reasonably necessary, the lawyer should arrange for communication to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved and who will attend to and abide by the duty of confidentiality. The lawyer should also use other assistive or language translation technology when necessary.
4. Where language considerations affecting the reciprocal exchange of information exists, 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.
5. Assistive technologies include closed captioning, live transcription, screen readers, refreshable braille display, and speech recognition software. Other technologies include electronic text to voice translation software and devices, telecommunication relay services, video relay services, and video remote interpreting.
6. Depending upon the circumstances, using technology instead of or in addition to the engagement of a human interpreter or translator may be appropriate and sufficient to satisfy the ethical obligations of communication and competence. Keep in mind, these technologies are rapidly changing and that underscores the duty of lawyers to develop an understanding of relevant technology.
7. The adoption of the ADA has led to growing awareness among lawyers that clients seeking representation may not be able to hear, speak, or read without accommodation.
8. The foundational rule of competence (Model Rule 1.1) and communication (Model Rule 1.4) in the ABA model rules of professional conduct prescribe a baseline that when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employing appropriate assistive or language translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice.
9. Lawyers must communicate with clients in a manner reasonably understandable to those clients so that clients know what is happening on their matters and can participate intelligently in the representation.
10. Firms and other legal organizations may be legally required to provide and pay for auxiliary aids and services in order to provide a client with reasonable accommodations under the ADA because law offices are explicitly included in the definition of public accommodations per 42 U.S.C. §12181(7)(f).
11. The ADA does not allow entities to pass along the cost of auxiliary aids and services to the person with the disability.
12. The duty of communication under current Model Rule 1.4 includes the duties: 1) to promptly inform the client of information when the client’s informed consent is required; 2) to reasonably consult with the client about the representation; 3) to keep the client reasonably informed about the status of the matter; 4) to promptly comply with reasonable requests for information; and 5) to consult with the client on relevant limitations on the lawyer’s ability to provide legal assistance. It is also incumbent on the lawyer to ensure that the client has sufficient information to participate intelligently in the client lawyer relationship, to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
13. Reasonably understandable client lawyer communication is not only necessary to enable the client to make important decisions, it is also an element of the lawyer’s obligation to provide the client with competent representation under Model Rule 1.1. If a lawyer does not communicate with the client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation necessary to provide the client with competent representation.
14. Communication between a lawyer and the client is both the means by which they client is provided with the advice and explanation needed to make important decisions and the vehicle as to how the lawyer obtains information required to address the client’s legal matter appropriately.
15. The information that must be provided when discharging the duty to explain a matter reasonably is what is appropriate for a client who is a comprehending and responsible adult.
16. If communications issues are such that the client cannot adequately comprehend the lawyer’s advice and other communication and therefore, cannot participate intelligently in the representation, 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. Ordinarily, that will require the engagement of a qualified impartial interpreter or translator or in some situations the use of an appropriate assistive or language translation device so that the lawyer and client can reasonably understand one another to a degree compatible with the lawyer’s professional obligations.
17. Ordinarily, the mode of communication to be used during the representation of the matter is to be decided between the lawyer and the client. In the case of language access issues, consultation with the client is appropriate if possible.
18. A lawyer cannot passively leave the decision to the client or thrust the responsibility for making arrangements for interpretation or translation entirely upon the client.
19. Once it is reasonably apparent that without an interpreter, translator, or an appropriate assistive or language translation device that there cannot be a reliably understandable reciprocal exchange of information between the lawyer and 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.
20. It is the lawyer’s affirmative responsibility to ensure the client understands the lawyer’s communications and that the lawyer understand the client’s communications. Where doubts exist, that doubt should be resolved in favor of getting an interpreter, translator, or an appropriate assistive or language translation device.
21. In general, an individual engaged to facilitate communication between the lawyer and the client must be qualified to serve as an interpreter or translator in the language required, familiar with and able to explain the law and legal concepts in that language, and be free of any personal or other potentially conflicting interest that create the risk of bias or prevents the individual from providing impartial interpretive or translation services.
22. The ADA generally obligates the lawyer to bear the cost of procuring such services when they are necessary to accommodate a disability.
23. In assessing the qualifications of the prospective interpreter or translator, the lawyer should verify that the individual is skilled in the particular language or dialect required. In addition, the lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts/terminology at issue so that the legal advice being provided is communicated accurately in the language or format acceptable to the client.
24. In most situations, the verification of a prospective interpreter’s or translator’s level of skill and capacity to convey legal concepts is best achieved through the engagement of the services of an outside professional to assist the lawyer in the delivery of legal services.
25. Depending on the circumstances, alternative arrangements may suffice. For example, a lawyer may look to a multilingual lawyer or a nonlawyer staff member within the firm to facilitate communication with the client. If a nonprofessional interpreter is contemplated, the lawyer should proceed cautiously in light of the reduced ability to assess the nonprofessional’s level of proficiency and the increased risk of inaccuracies in interpretation or translation.
26. In some instances, a client’s friend or a family member may function as a viable interpreter or translator. However, particular care must be taken when using a client’s relatives or friends because of the substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation. In such situation, the lawyer must exercise appropriate diligence to guard against the risk that the lay interpreter is distorting or altering communications in a way that skews the information provided to the lawyer or the advice given to the client.
27. A lawyer should be able to verify a prospective translator’s or interpreter’s professional qualifications in the same manner use when engaging the services of an expert, i.e., by evaluating the individual’s training, experience, certification, and professional standing.
28. Relatives and friends of the client may also be less reliable in providing interpretation and translation services when needed because they lack accountability to the lawyer or firm derived from an employment or other contractual relationship.
29. If obtaining necessary services would place an unreasonable financial burden on the lawyer or if necessary services are unavailable, the lawyer should ordinarily decline or withdraw from the representation or associate with the lawyer or law firm that can appropriately address the language access issue.
30. Under Model Rule 5.3, the lawyer must make reasonable efforts to ensure that the interpretive or translation services are provided in a manner compatible with the lawyer’s ethical obligations, particularly Model Rule 1.6, duty of confidentiality.
31. Lawyer should look for cues indicating that the nonprofessional interpreter is speaking for the client or filtering the attorney’s statement rather than impartially conveying the communications. In such situation, it is prudent for the lawyer to consult with the client about the risks and benefits of using a family member as an interpreter or translator.
32. Attorneys representing clients through interpreters should ensure that the interpreter has a clear understanding of the obligation to keep the attorney-client communication confidential.

 

II

Thoughts/Takeaways

 

1. Compliance with the ADA’s effective communication regulations is now more than a matter of ADA compliance. It is also now a matter of professional responsibility and compliance with legal ethical rules.
2. Just when is the communication not effective? As a preventive law matter, lawyers would do well to read Silva I, which we discussed here.
3. Lawyers should always use an impartial qualified interpreter.
4. With respect to the culturally deaf, keep in mind that it is not unusual for the Deaf to not be able to read beyond a fourth grade reading level. So, live interpreters may be your only option. Further, video remote interpretation may not be so great either. Conversations over the phone where the culturally deaf individual uses a video relay phone to talk to an interpreter who responds to the lawyer can work well but it depends upon how technical the information is because of the skill of the video relay interpreter can vary considerably.
5. Live transcription (AI) may work well depending upon how technical the information is. It is also going to depend upon the reading level of the prospective client.
6. Technology is rapidly changing and lawyers have an ethical obligation to keep on top of the rapidly changing technology when it comes to being able to accommodate their clients so that effective communication occurs.
7. Firms and other legal organizations are legally required to provide and pay for auxiliary aids and services in order to provide the client with reasonable modifications under the ADA in order to have effective communication with the client. The actual opinion uses the term, “may be legally required.” There is no “may be,” about it. Since the entire resources of the entity are looked at when it comes to undue burden, a lawyer is going to have a hard time showing that the costs of providing the auxiliary aid and service is going to be too much under the ADA. The lawyer is also going to have a hard time showing that providing such an auxiliary aid or service fundamentally alters the nature of their business. In fact, I don’t see how that is even possible.
8. The ADA does not allow cost of auxiliary aids and services to be passed along to the person with the disability.
9. While it is debatable whether the interactive process is required under title III of the ADA, it is certainly good preventive law to engage in the interactive process. Engaging in the interactive process with the person with the disability will prevent a lot of future problems down the road. It will also likely save you money. I would submit that the interactive process is necessary under title III and title II of the ADA because the very nature of providing reasonable modifications presumes an interactive process in the first place. For the do’s and don’ts of the interactive process, see this blog entry. Keep in mind, as we discussed here, that effective communication obligations may extend beyond the interactive process.
10. While a lawyer cannot thrust the responsibility to make arrangement for interpretation or translation entirely upon the client, there isn’t anything wrong with asking the client for assistance as they may know the people to go to. The lawyer still bears the ultimate responsibility for paying for it and for making it happen.
11. Qualified interpreters are so important. Definitely do not use family members or friends for interpreting. It is a really bad idea for many of the reasons noted in the opinion.
12. I don’t think I understand where the authors of Formal Opinion 500 get the idea that the ADA generally obligates the lawyer to bear the cost of procuring auxiliary aids and services. The ADA obligates the lawyer to bear those costs. As mentioned above, it is unlikely that a defense will exist for not bearing those costs.
13. Lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts and terminology before providing any interpreter services.
14. In the absence of some kind of extraordinary circumstance, I would not use nonprofessional interpreters, including family members, because of confidentiality issues, issues of bias, and accuracy issues.
15. The ADA standard for providing auxiliary aids and services when necessary is undue burden. The formal opinion 500 talks about “unreasonable financial burden.” Undue burden has a completely different meaning and looks to the entire resources of the entity.
16. A qualified interpreter for a culturally deaf individual is bound by their rules of ethics to keep communications between attorney and client confidential, which is yet another reason to use a qualified interpreter.
17. To be fair to the authors of Formal Opinion 500, they note that the ADA is very much involved here and that the opinion’s purpose is not to set forth a lawyer’s ADA obligations. Similarly, I am not opining on a lawyer’s obligation to provide interpreters for non-disability reasons.
18. Technology is changing rapidly. For example, Zoom is nowhere the same as it was six months ago when it comes to its accessibility features and its usability by deaf and hard of hearing individuals.
19. As we know, title II and title III of the ADA use the term reasonable modifications and not reasonable accommodations but the terms, with one case as an outlier, mean the same thing.
20. As we also know, the effective communication rules for title II and for title III are not precisely the same either. Title II has a primary consideration rule for the person with the disability while title III does not. Instead, title III presume some sort of interactive process.

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