Bar News - September 17, 2010
Morning Mail: Ethics Opinion on Interpreters ‘Falls Short of the Ideal’
By: Rosemary W. Dann
On behalf of the National Association of Judiciary Interpreters and Translators (NAJIT), I would like to comment on Ethics Committee Opinion #2009/10-2, the salient portion of which was published in the July 16, 2010 edition of the NH Bar News. This opinion addresses the ethical obligations of an attorney representing a client with whom the attorney cannot communicate directly in a language understood by the client.
NAJIT is a professional organization of some 1,200 members nationwide, whose members work both in state and federal courts on a daily basis. While we commend the Committee for stating that "the attorney must make use of a qualified, impartial interpreter" and cautions that "using relatives or friends of clients as interpreters carries substantial risks," we suggest that associating oneself with a bilingual attorney, working with a bilingual employee or staff member or utilizing a commercial or community interpreter service fall far short of the "ideal" and also carry substantial risks.
With regard to the suggestion of associating oneself with a bilingual attorney, we invite your attention to U.S vs. Bailon-Santana, 429 F3d 1258, a Ninth Circuit opinion, in which the case was reversed and remanded because the defense attorney, who represented himself as bilingual, sight-translated a waiver form to his client. The Court held that the attorney’s statement "lack[ed] one crucial component: confirmation by someone familiar with the requisite standard that the lawyer’s fluency is commensurate with the level required for translating the sometimes difficult words and concepts used in federal criminal cases." The opinion further stated that "[c]ertification as an official court interpreter is one way of ensuring competence, but it is not the only way. Where a certified interpreter is not ‘reasonably available,’ see 28 U.S.C. §1827(b)(2), Federal Rule of Evidence 604 provides a means for the court to qualify an individual as an expert interpreter, employing the methodology used for qualifying expert witnesses. One way or the other, however, the record must reflect a determination, based on something more than the individual’s say-so, that he has the requisite translating ability."
The broad suggestion that attorneys avail themselves of bilingual staff or commercial or community interpreter services is, in our view, equally perilous. Mere bilingualism is not sufficient to qualify an individual as a judiciary interpreter. To truly be "qualified" in legal and quasi-legal settings, an interpreter must demonstrate a general vocabulary equivalent to that of a college graduate in both the source and target languages; be familiar with a broad range of technical terminology, including medical, forensic, ballistics, automotive, commercial and procedural vocabulary, to name a few, and must be capable of interpreting in registers ranging from the formulaic language of the courts to street slang; must understand constitutional concepts and must be familiar with, and agree to abide by an interpreter’s code of ethics – be it state, federal or a that of a professional organization such as NAJIT or the American Translators Association. While codes of ethics may differ slightly in form, they share the essential requirements of accuracy and completeness, confidentiality, impartiality and a limitation on the scope of practice: i.e. refraining from providing opinions and legal advice. (The NAJIT Code of Ethics may be found at www.najit.org.)
The use of trained professionals is as essential in the office as it is in the courtroom. The attorney who is not a linguist or an interpreter cannot conclusively determine that a bilingual staff person, fellow attorney, or anyone else lacking interpreter training, will have the necessary tools, training and competence to render an accurate interpretation of the conversation, which is critical to competent representation of the client. Conversely, the use of untrained or unqualified individuals to interpret in legal matters can produce disastrous, if unintended, results for the limited-English proficient (LEP) or deaf or hard of hearing (DHH) individual, the attorney who has relied on an unqualified interpreter, and the justice system in general. These include adverse immigration consequences, miscarriages of justice (both the conviction of the innocent and freeing of the guilty), mistrials resulting in additional expenditure of the court’s limited resources, and ineffective assistance of counsel claims.
We hope that you will consider these issues when dealing with LEP and DHH clients. More information about judiciary interpreting and translation.
Rosemary W. Dann
Chair, National Association of Judiciary Interpreters and Translators
Response from Patricia Quigley, Chair of the NHBA Ethics Committee: Our intent was to provide ethical and practical guidance to the legal community on the issue of translation/interpretation. The Committee does not want to discourage attorneys from representing non-English speaking clients, as long as the representation is done competently. The use of a trained professional would be preferable, but is not necessarily practical.