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Beware meeting ESL clients without an interpreter – Beware meeting clients with others present

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One of the wonderful things about practicing in metropolitan Washington, D.C., is the rich mix of the local people’s national and ethnic backgrounds, including a wide array of languages.

What is a lawyer to do when a potential client or existing client does no speak sufficient English to communicate with the lawyer? Here is what I do:

Once the case is scheduled for court, it is essential to notify the court to arrange for a court-supplied interpreter. Beware about the varying quality of court-provided interpreters. Federal trial courts are very stringent in selecting interpreter, at least for Spanish. State courts seem to run the gamut. Administrative hearings where I practice seem the most risky. Suffice it to say that merely being fully bilingual is not sufficient to interpret, particularly in combative litigation setting where the objections and judicial admonitions to follow evidentiary rulings are flying.

Fortunately, I am fluent in French (since 1975) and proficient in Spanish (since 1983) to satisfy most language issues between me and clients. When I have a potential client or actual client who speaks any language other than English — and does not speak sufficient English — my ideal is for the client to pay for a qualified interpreter to assist my client’s communications with me.

Price ranges for qualified interpreters in my geographic area seem to run in the neighborhood of $85 hourly, sometimes for a two hour minimum, which often is a longer time period than I need for an initial consultation. I have not tried finding overseas telephonic interpreters who might charge less, but the problem in doing so is that the interpreter then sees neither me nor my client, which can detract from the quality of interpretation.

I see no alternative to assuring that a potential client and actual client and I fully understand each other. To settle for less than such a full understanding disserves both the lawyer and the client. This means needing to be prepared for a potential client to decline to meet when I require that s/he bring along a professional interpreter.

In some instances, the potential client has a friend or family member who is fully fluent in both English and the client’s language. When I agree for the friend or family member to interpret, I make clear to the client that there may become communications that are too sensitive and confidential to have anyone but an interpreter, paid by the client, assisting us.

A looming problem about letting a friend or family member interpret is the risk that they will step out of the role of the interpreter, intentionally misinterpret (e.g., to avoid me or the client hearing something unpleasant, but essential, from the other), or try to inject their opinions and concerns into the conversation. This is why I make it clear from the outset when a client wishes the interpretation help of the friend or the family member, that I may require a paid interpreter’s assistance in some or all future conversations.

Just as it is essential for the lawyer to determine how much participation the interpreting friend or family member has in conversations with the client, the lawyer needs to be clear at the outset to all clients — whether they speak sufficient English or not — that the lawyer will make the final determination about how active or not will be any friend or family member in conversations with the client, particularly when it is suspect about whether the friend or family member has conflicting interests (e.g.. when my client has a relative co-defendant, or where the friend or family member is a potential suspect or might otherwise have been involved in my client’s alleged crime). Towards that purpose, I have an addendum to my client contracts for paying parties to sign, when my client is not the paying party, that confirms that the client is the only client, and that the paying party does not gain any rights in my attorney-client relationship merely by being the paying party.

Such a contract addendum does not always do the trick. However, it tends to weed out the clients and paying parties who are uncomfortable with my calling the ultimate shots about how involved or not will be my clients’ friends and family members in the client’s case, and the signed contract addendum is something I can point to when a paying party raises the claim of "It is my money that you were paid, and I am entitled to be fully involved in my child’s case."

Certainly, it can be scary for a parent or spouse to pay for a criminal defendant’s attorney’s fee and not get the automatic right to be intimately involved in the case. I can provide my empathy on the matter, but my many years of experience has shown that my approach makes my client more likely to come clean to me with any concerns and any problems in preparing his or her defense, minimizes any efforts by family members to encourage the client to prevaricate to me, and maximize the ability for me and my client to fully relate to each other, so that we can work together as a powerful team and so that my client can be fully informed about his or her choices in the case. Certainly, at times it is beneficial to include a client’s family member or close friend in certain decisions, but it is important for me to have the final say about how involved will be the family member or friend.

Back to interpreting, it is always better to err on the side of getting interpretation help rather than to find out when it is too late that the client did not admit problems understanding the lawyer or court proceedings, out of embarrassment of admitting such limited understanding of English.