ACCESS TO THE DISCIPLINARY SYSTEM
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional
Responsibility
Reprinted
from Bench & Bar of Minnesota (August
2008)
Last year I traveled to Chile and Peru. I do not speak much Spanish. Few of the people I dealt with in either
Chile or Peru spoke much English.
Although I managed to get around (my wife and I were visiting our son
who was studying in Chile at the time and who could act as an interpreter when
he was with us), I was reminded how difficult it must be for the many residents
of this country who don’t speak English as a first language, or don’t speak it
at all. Spanish and English at least
share many cognates, words that may be recognizable to a non-English
speaker. What about the many Hmong,
Karen, Somali and Russian immigrants living in Minnesota for whom even basic
signs in a foreign alphabet may be difficult?
I read some Russian, and having spent a little time in the former Soviet
Union I recall just how big an advantage that gave me over members of my group
who couldn’t even make out a street name in the Cyrillic alphabet. Even briefly experiencing what is a daily
fact of life for so many is indeed eye-opening!
We as lawyers can easily forget what an even more overwhelming experience it must be for someone who is not fluent in English to enter into the justice system in this country. Even for many natives, the legal jargon spoken and understood by lawyers may seem like a foreign language—for a non-native speaker such technical language may as well be ancient hieroglyphics.
Language & Disability Issues
Last
month, I highlighted several aspects of the recent report of the Supreme Court
Advisory Committee to Review the Lawyer Discipline System. One of their specific areas of study and
recommendation was access to the disciplinary system for individuals with
limited English proficiency (LEP) or with
disabilities. The committee wrote:
As a matter of good public
service, Minnesota should ensure that all of its legal system consumers,
including disabled and LEP persons, do not encounter
serious barriers in the lawyer discipline system. The integrity of the profession cannot be
properly safeguarded if a segment of the community cannot effectively bring
complaints to the lawyer discipline system or if the system is unable to gather
information from and interact with persons with communication limitations and
disabilities.
The
committee noted further that accommodations for individuals with disabilities
and interpreters for LEP persons in judicial
proceedings—including licensing proceedings—are, in addition to being wise
policy, often required by law.
The
committee complimented the discipline system for already being responsive to
needs in this area. In the past, the
Director’s Office has used foreign-language or sign-language interpreters in
its hearings and meetings as needed, and used translators for complaints and
associated documents when complaints are received in a language other than
English. The Director’s Office currently
has its brochure translated into Spanish, Hmong, Somali and Russian, and our
website has the brochure and a complaint form available in Spanish. We are in the process of expanding those
options. There has not been an extensive
demand for such services to date, which means that the discipline system has
not yet had to face the vastly increased costs for interpretation services that
the district courts now confront. That
fact does not diminish the need to have such services readily available,
however.
The
committee recommended that the discipline system’s policies be more
formalized. Specifically, the committee
urged consultation with state councils that serve the needs of individuals with
disabilities and limited English proficiency, leading to adoption and publication
of a formal written policy. The
committee advised that such a policy should provide, inter alia, that
any complainant, witness or respondent attorney who cannot effectively
communicate in the course of a disciplinary hearing without assistance shall be
provided an interpreter by the Director’s Office upon request. At the investigation stage, anyone (including
DEC volunteer investigators) requesting an interpreter should have one
provided. Accommodations, such as
holding meetings only in handicap-accessible spaces, should be made to afford
equal access for meetings and hearings involving people with disabilities. These are all reasonable suggestions that
effectively describe how the disciplinary system already operates; there should
be little difficulty in formalizing and following such proposals.
Using Interpreters
Court-certified
interpreters, not unlike other regulated professionals, are subject to a code
of professional responsibility that subjects them to potential discipline or
loss of certification. In a court
proceeding, the interpreter is sworn in just like the witness. Trained and court-certified interpreters also
can generally be relied on to know most legal terminology in both English and
the target language. That’s why
conscientious lawyers use certified interpreters.
The
advisory committee generally urged the Director’s Office to rely on trained
interpreters, although the committee recognized such a requirement might be
impracticable at some stages of an investigation, such as when a complainant
“walks in” with a family member or friend to interpret prior to having
submitted a written complaint. In most
situations, use of such uncertified or informal interpreters can raise
concerns. First of all, the informal
interpreter likely has no interpreting training and may lack true proficiency
in one of the languages and thus provide inaccurate information. Sometimes even a well-meaning individual may
embellish or simplify the actual statements or slightly change the
meaning. Further, the individual may be
interested in the outcome of the matter and be subject to conflict issues. To ensure accuracy when dealing with an LEP complainant, whenever possible the Director’s Office
attorneys seek to conduct at least one session with the complainant that is
professionally interpreted before an attorney is charged with unprofessional
conduct.
Between a lawyer and client, few ethical issues arise in the use of interpreters. The obligation under Rule 1.4 to communicate with a client may mandate the use of an interpreter in some instances. Use of interpreters, and especially informal arrangements, can raise confidentiality and privilege concerns, however. The presence of an interpreter during a meeting between an attorney and client does not affect the lawyer’s confidentiality obligation under Rule 1.6, since any information obtained still relates to the representation of the client, which is the threshold for requiring confidentiality. Whether the presence of a third person such as an interpreter may be construed to constitute a waiver of the attorney-client privilege is a question often raised, and is a question of law for which a judicial opinion would be necessary. It appears that courts in other jurisdictions typically have held that the presence of an interpreter, where necessary, does not destroy the attorney-client privilege,Ftn 1 and Minnesota law requires interpreters to honor all applicable privileged information obtained in the course of their duties. The lawyer nevertheless should remind the interpreter of the confidentiality obligation, since pursuant to Rule 5.3, the lawyer has her own independent obligation to ensure compliance with the Rules of Professional Conduct by all nonlawyer agents.
Conclusion
In parallel with demand for access to the courts generally, the need for
interpreter and translator services continues to increase. The lawyer disciplinary system will continue
to use and likely will expand its use of interpreters and translators in the
future, and will continue to accommodate people with disabilities. Formalizing these policies, as recommended by
the Supreme Court Advisory Committee, is appropriate.
Notes
1 See, e.g., People v. Osorio, 75 N.Y.2d 80, 549 N.W.2d 1183, 1186
(1989).