New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Keep your contact information up-to-date.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - September 21, 2007


Understanding Immigrant Pro Bono Clients

By:


 
Roberto Gonzalez

I have been asked to discuss a pressing issue: understanding the needs of the immigrant pro bono clients.A vulnerable population of human beings who come to this country in hopes of a better life, who often do not know the English language and culture, who are poor and undereducated, and who often live in fear. We all realize this is a country of immigrants, and, that except for Native Americans, our ancestors were immigrants. We have all heard of the contributions that immigrants have made to our country. However, not all of us understand the struggles and obstacles that immigrants have had to overcome before they have been accepted in our society. In this present day climate of hate and fear and heightened security, immigrant groups face even greater struggles and obstacles. 
           

Many attorneys find it difficult to relate to the immigrant experience and the special needs immigrant clients present. All too often well meaning attorneys undertake cases involving immigrant clients without understanding the language, the culture, or the impact of the case outcome on an immigrant’s immigration status. Inadequate legal representation in cases involving immigrants usually results in grave and devastating consequences, including detention and deportation. Unlike a U.S. citizen who can sue a lawyer for malpractice, or file a complaint with disciplinary counsel, a deported immigrant, due to financial, geographic and other reasons, is unlikely to pursue such recourse. While there are many significant and noteworthy efforts to provide competent legal representation to immigrants, the number of immigrants in need is so large as to suggest that we as a legal profession must do more to both improve the quality of pro bono legal services and to provide more of it.

           

We often think of pro bono as a free service to a poor client, but it actually means much more. The term pro bono is derived from the Latin phrase pro bono publico, meaning for the public good. The long-standing tradition of supporting the public good, by donating time and expertise to individuals and organizations that are unable to afford them, implicitly requires that lawyers be able to communicate effectively with their clients. Obviously, if a lawyer cannot understand the client, he or she will not be able to communicate effectively. If lawyers can’t communicate effectively, the outcome of their representation may be at no cost to the client, but it will not be pro bono publico.

           

In the U.S., there are some 35 million foreign-born individuals and another 35 million Native Americans, Hawaiians, Puerto Ricans, and others, who are culturally and linguistically different from mainstream America. In Rhode Island alone, approximately 80 different languages are spoken. All too often, immigrant populations do not have a good understanding of our legal system and the legal system does not have a good understanding of the immigrants.

           

Certainly, major corporations spend tremendous resources to better understand immigrants, especially the Hispanic or Latino populations. They do it, not for the public good, but in the interest of their shareholders. If they fail to communicate effectively, their sales and profits suffer. As attorneys, we are trained to listen carefully, to analyze and apply the law to our facts. However, very few law schools provide us with the tools and techniques that assist us communicating effectively with immigrant clients from diverse ethnic origins. For example, lawyers may or may not know the techniques that will assist them in communicating with people from different cultures, such as differentiating between cultural competence and linguistic fluency, or the individualist and communitarian models of culture. For the public good, lawyers and our profession must do more to better understand the immigrant populations that need our services.

           

When we hire staff or an interpreter we may ask the candidate if he or she is fluent in another language. The discussion usually ends there. However, what we really need to know is whether our candidate is culturally competent. Language is one barrier, but coming from a different cultural background is often a greater barrier. It may not be enough to simply use any interpreter who may speak the language. If we are to properly serve the immigrant populations that comprise our pro bono clientele, we must have, at the very least, a basic understanding and appreciation of linguistic and cultural differences. Certainly, when it comes to understanding and representing the needs of the immigrant client, hiring staff that is linguistically and culturally competent will give you an advantage over those who do not.

           

Cultural competence is defined as a set of congruent behaviors, attitudes, and policies that come together in a system, agency, or among professionals and enables that system, agency, or those professionals to work effectively in cross–cultural situations (Cross et al., 1989; Isaacs & Benjamin, 1991). Operationally defined, cultural competence is the integration and transformation of knowledge about individuals and groups of people into specific standards, policies, practices, and attitudes used in appropriate cultural settings to increase the quality of services; thereby producing better outcomes (Davis, 1997 referring to health outcomes).

           

There are many definitions for culture. The most common approach defines culture as a summary of its components. E.B. Taylor, a nineteenth century anthropologist, described culture as “that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.” A second approach focuses on the social heredity of people, its fundamental ideas, practices and experiences, which are transmitted from one generation to the other, usually from parents to children. In this approach, one becomes a member of a culture not by birth, but by a process of learning.

           

However you define culture, differences in educational attainment, socioeconomic levels, attitudes, beliefs and values must be considered in order to communicate effectively with immigrant clients. One of the best ways to understand culture is in terms of how immigrants see their world. In other words, seeing the world through the eyes of your client. Short of living and experiencing a different culture, there is no easy way to do this. A tool, which I learned to apply, is the principle that cultures are either based on a communitarian or an individualist model. In communitarian settings children are taught that they are part of a circle of relations. This identity, as a member of a group, comes first. Members are rewarded for allegiance to group norms and values, interdependence and cooperation. Wherever they go, their identity as a member of their group goes out in front.

           

Individualist patterns involve ideas of the self as independent, self-directed, and autonomous. Many European societies presuppose exactly this kind of person: someone able to make proposals, concessions, and maximize gains in his or her own self-interest. Children raised in these communities are rewarded for initiative, personal achievement, and individual leadership. While the U.S. is primarily an individualistic society where we value independence over interdependence, Hispanics or Latinos tend to come from communitarian societies, where family and group needs are valued over individual needs.

           

Of course, no culture is purely one or the other. Individual and communitarian cultures connect at some point, since all groups are made up of individuals and all individuals find themselves in relationship with various groups. But the starting point is different and therefore, how people see the world is very different.

           

Here are a few considerations that may help you understand immigrant clients:

  • When lawyers schedule appointments they expect the client will come alone, as it is a confidential and personal matter affecting the individual. However, the Hispanic client may show up accompanied by his or her extended family, elders, friends, or others and solicit their input and involvement. The client may resist efforts to be separated from the group.
  • We must be mindful that there are vast differences in legal systems. In many countries trials are not adversarial proceedings, but rather inquisitional in nature. In totalitarian governments, laws change at the whim of the dictators. In some countries, laws may be based on religious doctrine. Collegial behavior among attorneys, or between attorney and judge, may be viewed as giving in or selling out. You must not assume that your clients understand how our legal system works. Let your client know what to expect so that he or she does not misunderstand our system. We must educate our clients about our legal system.
  • We must understand that our immigrant clients may distrust and fear government, police, and authority figures. In many countries, the government has been misused to suppress the people. Bribes are used to obtain desired outcomes. Clients may believe that if the attorney greases the palm of the judge, prosecutor or government official the matter will be resolved. Conversely, if the client does not obtain the desired result, he or she may believe the attorney sold out.
  • In the U.S., time is money. However, in many places outside the U.S., life is on a slower pace and time and punctuality are not as important as a relationship. Consequently, an immigrant client may want to ask you how your family is doing before talking about the true purpose of the visit. To many cultures, the concept of scheduling an appointment is not adhered to and consequently clients tend to walk-in and expect that they will be seen. They may also bring a friend who needs a consultation. The best approach is to educate the client early on as to what your procedures are for seeing clients, making appointments and returning telephone calls. It is especially important to help clients understand how important it is to be on time for court and be ready to wait for a long time.
  • In many immigrant cultures, honor and self-esteem are virtues that may override legal and economic considerations, whereas in the U.S. honor and self-esteem are often overridden by the cost to defend these. A client who feels that his rights have been violated or that he or she has be wronged in some way may not be happy with an attorney who refuses to pursue his or her case. An explanation may help the client understand.
  • In many cultures age translates to wisdom and experience, hence deference is shown. In the U.S., that which is new and young has greater value. Certain roles are determined by age. This is a very significant consideration, especially when dealing with issues involving caring for elderly (nursing homes) and children (daycares and schools).
  • In many cultures gender determines a role. While in the U.S. women and men are perceived as being equal, in too many other cultures women are not perceived to be equal and, therefore, clients may refuse a female attorney.
  • For many reasons immigrants tend to move frequently. Therefore, it is important to let clients know that they have the responsibility to notify your office of any address changes. I have adopted the practice of getting the name of a family member that can be contacted in the event of an emergency.
  • Body language varies tremendously from one culture to another. Body language is the non-verbal movements we make as a part of how we communicate, from waving hands to involuntary twitching of facial muscles. It is important to understand that the message behind the body language or non-verbal behavior may be totally different to what we are accustomed. It is easy to misinterpret the message. Below are a few examples:
  • Touching and personal space – Touching may be taboo or a sign of acceptance. As Americans, we tend to believe that a handshake is a universal greeting. This is not so. Knowing whether to shake your client’s hand or not can make the difference between establishing a good relationship with a client. In many Middle Eastern cultures, a woman is not to be touched. A good approach is to observe how much personal space your client creates and whether or not the client offers you his or her hand.
  • Eye contact – Lowering eyes in Hispanic cultures is a sign of respect. However, in the U.S., it is often equated with untruthfulness or avoidance.
  • Tolerance to pain and medical procedures – In many cultures, western medicine is not practiced widely. Instead, people may practice unconventional medicine. Many will mix western medicine with non-western medicine. Many fear and distrust surgical and medical procedures. Some cultures tend to augment or exaggerate pain, while others may be non-communicative about pain. This may result in an unfavorable determination by a doctor, an insurance adjuster, or a judge.
  • Dress, jewelry, and appearance – As culture varies, so does manner of dress and appearance. It is important for attorneys to make clients aware of the appropriate dress for court, not because you want your client to abandon their traditions, but because dress may be perceived in an unintended manner. For example, in some cultures, flashy clothing and glittery jewelry may be a status symbol. However, to some others it may give the appearance of illicit activity.

 

In the preceding information, I mentioned the linguistic barrier and the need to utilize interpreters who are trained beyond linguistic fluency. All too often I have seen interpreters who are not capable of communicating effectively because they are not culturally competent and, therefore, they don’t understand the cultural context of the language. Interpretation is a skill involving more than simply knowing the two languages. In Spain alone there are several distinct dialects of the Spanish language. Similarly, in Central and South America, there are several dialects spoken. Each dialect is usually accompanied by distinct cultural elements. Portuguese spoken in mainland Portugal is very different from the Portuguese spoken in Brazil. While Brazil and Portugal share much in their culture, there are many differences in their respective cultures. The interpreter must consider the cultural context of language. An even more difficult scenario arises when one presumes the language spoken by a client is based on country of origin. I have encountered people from predominantly Spanish speaking countries who do not speak Spanish. For example, some indigenous groups in Guatemala speak Quiche, which is totally different from, and unrelated to, the Spanish language.

 

When representing an immigrant client, it is important to remember that an interpreter can make or break a case. A few pointers to keep in mind are:

  • Differences in legal systems and lack of knowledge of legal systems result in inability to accurately convey the meaning of legal terminology.
  • Incompetent and inaccurate interpretation can create credibility issues.
  • Use of friends and family may lead to bias interpretations.
  • It is the attorney’s professional responsibility to make sure the client fully comprehends.
  • It is the attorney’s professional responsibility to make sure the interpreter accurately translates. In a court proceeding, if there is any doubt about the interpreter’s ability, the attorney should ask the judge permission to voir dire the interpreter. You can and should inform the court of inaccuracies. You can object. When scheduling an interpreter, one must ask if the interpreter is competent to translate in the particular context.
  • Dilemma – Unless the attorney knows the language he or she may not be equipped with skills to monitor the interpreter.
  • Non professional interpreters should always be instructed to translate only what is said and not to editorialize or answer questions for the client or go outside of the scope of the dialog between the attorney and the client.
  • When using an interpreter during an office meeting with a client ask yourself if there is an attorney/client privilege? Or, is the privilege waived? Remember that when an attorney uses a third party, who is not a member of attorney’s firm, the third party is not bound by rules of confidentiality.

 

While immigration status is not directly related to culture, with approximately 12 million undocumented persons residing in the U.S., it is worth addressing the issue here. The undocumented make up a significant portion of the pro bono clients. Legal residents also make up another significant portion of the pro bono clients. They often present special issues and challenges for lawyers beyond the issues of communication. Remember, all persons, irrespective of their immigration status have legal rights. The U.S. Constitution and the R.I. Constitution state that “No person . . . shall be deprived life, liberty or property, without due process of law…” Nevertheless, lack of legal status is often used against the undocumented to intimidate them and discourage the pursuit of legal rights, or to attack their credibility. It is important that lawyers determine whether or not the client’s immigration status may present a legal issue during the course of the representation or after the case is over. If it could be an issue, the lawyer has a professional responsibility to prepare accordingly.

           

While legal status is irrelevant in establishing eligibility for workers’ compensation benefits (where ER/EE relationship exists), it may very well become an issue for qualifying for suitable alternative employment. Immigration status is very relevant in criminal cases, since lawful permanent residents will be deported because of certain convictions and sentences. Lawyers who take on pro bono matters have a professional responsibility to find out the person’s immigration status and determine whether or not it may present additional issues.

           

When lawyers undertake a pro bono case, they are not simply providing a free service to a poor client. The lawyer is taking on a matter for the public good. Free does not justify second-rate representation. Being able to understand and communicate effectively with the client is a necessary prerequisite to good representation. Often, the challenge to a lawyer confronted with a client who does not speak English and who is from another culture, lies in truly understanding the client. Economic resources to hire competent interpreters are often not available. Yet, failure to understand the client, will certainly affect the outcome. If we can’t communicate effectively, our representation may be at no cost to the client, but it will not be pro bono publico.

 

Roberto Gonzalez, Esq. is a partner with Gonzalez Law Offices, Inc. and a recently retired Chief Judge of the Providence Housing Court.

 

Reprinted with permission from the Rhode Island Bar Journal Volume 56, Number 1, July/August 2007.

 

 

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer