The duty of communication is both a fiduciary duty and, for lawyers, a professional one. American Bar Association Model Rule 1.4, one rule that every jurisdiction has adopted nearly verbatim, holds that
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
The last part is, much of the time, a fictional standard. I have been hammering at this in my recent ethics seminars, much to attendees alarm: clients often, perhaps even most of the time, don’t comprehend what’s going on on many levels.
My particular point of pique is a client’s so-called “informed consent” to a lawyer’s conflict of interest. The rules require a lawyer to receive a client’s informed consent when a conflict allegedly won’t interfere with a lawyer’s loyalty and zeal, but in my experience, most of the public doesn’t understand what a conflict of interest is. (Too many lawyers don’t either.) Well, the fact is that they can’t. Nor is their consent when they do waive a conflict on their lawyer’s part truly informed.
This problem was brought into sharp focus when I read the latest ABA Formal Opinion, #500. Keep in mind that such opinions are purely advisory. No lawyer and no state bar has to follow them. Their purpose is to define an ethics standard for the profession. This is the opinion summary:
“Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s non-cognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished. In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, bearing in mind potential differences in cultural and social assumptions that might impact meaning.”
The opinion was undoubtedly inspired by the long-standing problems faced by immigration clients, some of whom are well-served by their attorneys, but many of whom are not. The intention is laudable, but as we often say on Ethics Alarms, an ethical standard that isn’t practical isn’t ethical, and certainly isn’t useful. This passage is pure fantasy:
“When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality.”
Putting aside for now the obvious problem that immigration clients are often indigent and this is a significant added expense, the obvious problem is where one finds such an interpreter of translator who understands complex legal principles and the law sufficiently to explain it to a non-English speaker. This is especially unlikely since so many lawyers aren’t very skilled at explaining legal concepts. If the translators aren’t lawyers, how does a lawyer know he or she will “abide by the lawyer’s duty of confidentiality”?
Now don’t get me wrong: it would be wonderful if lawyers would and would do this, not just for the English deficient and the intellectually-challenged, but also English-speaking clients who had a typically lousy education and whose understanding of the law and the legal system is based on watching “Law and Order.” But it’s not going to happen.
What the ABA has noticed is a big problem that has been ignored for too long. Now they need to get serious and come up with a realistic solution.