Ethical pitfalls may follow lawyers who “No habla español.”
February 26, 2010 by lawmrh
Regardless of the actual numbers, there’s a significant Hispanic presence not only in the Southwest but increasingly around the nation. This translates into potential business opportunities for purveyors and service-providers of all types. Lawyers are no exception as they, too, view the large Spanish-speaking community as a promising market. Moreover, the Spanish-speaking remain largely under-served in many practice areas.
But when lawyers don’t speak the lingo or don’t have the time or the inclination to shell out $500 or more for Rosetta Stone or its equivalent, what’s an enterprising non-Spanish-speaking lawyer to do?
For some lawyers, the answer is to fake it. Hire bilingual help. Maybe there’s osmosis for lawyers with semi-permeable membranes.
And bury yourself in an advertisement photo surrounded by your predominantly Hispanic cast. Or maybe go the Corinthian Leather route. Hire yourself a latter day Ricardo Montalban to pitch your legal services. Go ethnic or go home.
But beyond all this, there are ethical issues involved. The most common hazard occurs when a Spanish-language impaired lawyer impermissibly sanctions the unauthorized practice of law (UPL). UPL can happen when non-Spanish-speaking lawyers give bilingual non-lawyer staff so much autonomy that they’re running the entire practice.
Last March, for instance, a lawyer was publicly reprimanded by the Georgia Supreme Court for failing to supervise his paralegal. See Practical Paralegalism: March 2009
. And in Nevada, twice-disbarred Charles Radosevich was caught practicing without a license in Nevada last year. He took down 2 licensed lawyers in the process. See LV Sun.
In Arizona, the relevant rule is Ethical Rule 5.3 and the specific provision requires a lawyer’s supervision of a nonlawyer assistant, including in part at (b) that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer . . . .”
The rule goes on at ER 5.3 (c) as follows: a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;”
“No habla español.”
Consequently, if the supervising lawyer does not speak Spanish as in “No habla español,” the lawyer’s supervision of her bilingual nonlawyer’s interactions with Spanish-speaking clients may prove difficult. What if misrepresentations are being made about the lawyer’s services? The lawyer may find herself liable if she did not make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. What it comes down to, is this. A lawyer can’t do through others what she couldn’t do herself under the rules.
And so this is the hard part of hiring bilingual staff when ‘it’s all Greek’ to the lawyer. It’s trusting but not being able to verify. A criminal defendant, for example, can’t be linguistically present at his trial if he doesn’t understand the language of the proceedings (1).
But what about a lawyer who doesn’t understand what’s being said to her client? Or understand what her client says in reply? Is that lawyer linguistically present for her client if she doesn’t understand what bilingual staff is telling her client? Also see Court interpreting: linguistic presence v. linguistic absence …
And what about the accuracy of what’s being translated? How does a non-Spanish-speaking lawyer reasonably assure herself that accurate language interpretation is taking place?
Over the years, I’ve read disciplinary rulings of lawyers disciplined over UPL as nonlawyers handled legal matters they shouldn’t have. In some of those instances, clients either never met their lawyer or if they did, it was the equivalent of 15 minutes of fame to be blessed with their lawyer’s fleeting attentions. But then again, it must be tough running a high volume mill when you actually have to see your clients?
Arizona Ethics Rule 7.1 prohibits false or misleading communications about a lawyer’s services. So beyond Hispanic-sizing a name, adopting a Hispanic celebrity pitchman, or staffing up with Spanish-speaking help, a lawyer wanting to market to the Spanish-speaking community and not knowing the language, might want to make doubly-sure that the “Se habla español” advertisement is a factual statement. In other words, care should be exercised so that prospective clients don’t mistake “Se habla español” to mean the non-Spanish-speaking lawyer speaks Spanish when it’s only her staff that does.
So beyond donning the figurative, even literal sombrero of contrived rapport. Lawyers targeting the Hispanic market need to be cognizant of the relevant ethical rules. In this way, when hiring bilingual help, the supervising lawyer has assured herself the staff is trained, competent and committed to conduct compatible with her ethical obligations.
(1) “A defendant’s inability to spontaneously understand testimony being given would undoubtedly limit his attorney’s effectiveness, especially on cross-examination. It would be as though a defendant were forced to observe the proceedings from a soundproof booth or seated out of hearing at the rear of the courtroom, being able to observe but not comprehend the criminal processes whereby the state had put his freedom in jeopardy. Such a trial comes close to being an invective against an insensible object, possibly infringing upon the accused’s basic right to be present in the courtroom at every stage of his trial.” [Citation.] State v. Natividad, 526 P.2d 730, 733 111 Ariz. 191, 194 (Ariz., 1974) and also see González,Vásquez, Mikkelson, Fundamentals of Court Interpretation, Durham: Carolina Academic Press, 1991, p. 49, “For a defendant to be assured his due process rights, all the information regarding his case should be available to him in a language he understands. In the case of some defendants, this is not possible without an interpreter. This issue has been perceived by some courts as an issue of “linguistic presence,” because “without an interpreter, many limited- or non-English-speaking persons are not legally present in the courtroom.”