Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is an attorney acting competently if the attorney undertakes representation of a client when the attorney is not able to communicate directly with the client in a language clearly understood by that client?
As a general rule, the attorney need not have any personal knowledge or language skills relating to the language ability of the client. It is necessary, however, for the attorney to be able to communicate adequately with the client. Therefore, consideration should be given to language impediments which would materially impact on the attorney's ability to communicate adequately in the specific circumstance. The method in which this is done depends upon the circumstances of each situation.
Rule 6-101 of the Rules of Professional Conduct of the State Bar of California.
In the last several decades, California's non-English speaking population has increased dramatically. The law itself has become much more complex, necessitating the need for better and more complex communications with non-English speakers and non-native speakers of the English language. A lawyer should, therefore, be sensitive to the non-English or limited English-speaking client's communication difficulties in explaining his or her legal problem and in understanding the legal advice to be provided by the lawyer. Such sensitivity is an important aspect of attorney competence under rule 6-101, as well as all other duties and obligations of attorneys requiring communication. (See Rules Prof. Conduct, rules 2-107(B)(9), 2-108(A), 2-11 l(C)(5), 4-101, 5-101, and 5-102.)
An attorney must have or must acquire sufficient time, resources and ability so that he can apply the sufficient learning, skill and diligence necessary to discharge the duties arising from the attorney's employment or representation (rule 6-101). However, the inability to communicate directly with the client in a language clearly understood by the client does not always preclude the attorney from discharging the attorney's duties within the meaning of the preceding sentence. It should be noted that difficulty in communication can occur even between those who speak the same language, since a client may not immediately grasp the import of the words used by counsel
It is the responsibility of the attorney to gather all of the relevant facts, undertake reasonable research in an effort to ascertain legal principals and make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. (See Smith v. Lewis (1975) 13 Cal.3d 349.) The client may have selected the attorney knowing that direct communication may be limited, or even not possible. However, this does not reduce the attorney's duty to communicate adequately. If direct communication in a language clearly understood by the client is not possible, the attorney must take into account the fact that means other than direct communication will be required to discuss the client's case and to meet the responsibilities noted above. Although relevant, the means used are not controlling with respect to the issue of lawyer competency; however, adequate communication is necessary in order to render "competent" legal services.
On any matter which requires client understanding, the attorney must take all reasonable steps to insure that the client comprehends the legal concepts involved and the advice given, irrespective of the mode of communication used, so that the client is in a position to make an informed decision. Appreciation of the client's language may have a substantial bearing on the capability of the attorney to communicate with the client concerning such facts, legal concepts and advice. The attorney may need to communicate in a particular language or dialect and for this purpose may need to use an interpreter skilled in a particular language or dialect. Other means reasonably available to counsel, such as a person skilled in sign language or in translating a written document, may need to be used in order for counsel to act competently in a particular case.1 Another alternative is to refer the case to or associate a bilingual attorney who can assist with the language problem, as is done in other areas when a lawyer is confronted with a matter calling for skills outside his or her personal experience or ability.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 For example, such a translation may be essential for critical documents, such as a contingency fee agreement (Bus. & Prof. Code, 6147), a general release of claims (Civ. Code, 1541), or a written waiver of a conflict of interest (Rules Prof. Conduct, rule 4-101).
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