July 2022 Ethically Speaking - ABA Formal Opinion 500 Provides Guidance Regarding Common Language Differences

by Cathy Tran Moses

The country’s population has grown increasingly diverse over time. In Orange County alone, nearly half of adults in the county speak a language other than English at home.1 In light of this growing trend, attorneys in the county and elsewhere in the state may find themselves increasingly working with clients who may not speak the same language as the attorney, or who may not be able to hear, speak, or read without accommodation.

In October of 2021, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 500, which reminds attorneys of their obligations when working with clients who do not speak the attorney’s language or for whom the conventional written or spoken word is not an accessible form of communication. The Opinion provides useful, specific guidance for attorneys regarding their duties of communication and competence in these situations.

Attorneys Must Ensure Clients Can Understand and Participate in the Representation
Under Model Rule 1.4, a lawyer is obligated to, among other things, reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information about the client’s case. California’s Rule 1.4 contains these same obligations.

Under Model Rule 1.1, a lawyer must provide competent representation to a client, which requires legal knowledge, skill, thoroughness, and preparation. California’s Rule 1.1 is similar.

ABA Formal Opinion 500 states that if a client cannot comprehend a lawyer’s advice, and thus cannot participate intelligently in the representation, or the lawyer cannot ascertain the information that the lawyer needs to assist the client, the lawyer is required to take actions that will establish a reasonably effective mode of communication with the client. That, in turn, may require use of a qualified impartial interpreter or translator. The Opinion distinguishes a translator as one who works with the written word, from an interpreter who “converts speech from a source language into a target language.”

Once it is reasonably apparent to the attorney that there cannot be “a reliably understandable reciprocal exchange of information between the lawyer and the client,” the lawyer is required to take steps to help the client understand that an interpreter will be needed. The lawyer also must take steps to secure the interpreter if needed.

The Opinion emphasizes that if the lawyer has any doubt about whether the lawyer and client can communicate with and understand each other, that doubt should be resolved in favor of engaging an interpreter or using an appropriate assistive or language-translation device. Lawyers should not simply assume that the client understands or can communicate with them.

Attorneys also should proceed cautiously, and not make assumptions, about whether a client can speak or understand some English. In such cases, an interpreter or translator still may be required if the client appears to need assistance understanding legal concepts. The services of a translator for written documents also may be useful in that situation.

The Opinion also makes clear that if a third person is engaged to provide language assistance to a client, that provider must meet certain basic requirements. The person must be qualified as an interpreter, be able to explain to a client the law and legal concepts, and be free of any potential conflict of interest that would create a risk of bias.2 The lawyer also should confirm that the individual has the proper language skills and the expertise to comprehend and translate the legal concepts and terminology at issue so that the client can understand. In most situations, an attorney can best ensure that the interpreter is properly qualified by engaging an outside professional. If that is not feasible, however, the Opinion notes, with some qualifications, that the lawyer may try to seek the assistance of a multilingual lawyer or a staff person to assist. But in this circumstance, the lawyer should proceed cautiously in terms of assessing and understanding that person’s level of proficiency in the language and ability to translate accurately. Again, the lawyer should not simply assume that a colleague will have the proper skills to translate or interpret.

It is possible for a client’s friend or family member to provide language assistance. However, the Opinion notes that this is a particularly fraught option because of the risk of potential bias and any personal interest in the outcome that could affect the person’s ability or desire to assist. If an attorney does use a friend of the client to help with language differences, the lawyer must be diligent in guarding against any risk that the friend could be altering the interpretation.

If the lawyer or the client cannot bear the financial burden of obtaining language assistance, the Opinion advises that the lawyer should decline or withdraw from the representation, or associate with another attorney with the requisite language ability who can assist.

Lawyers also are required to ensure that the interpretive or translation services are being given in a manner that comports with the lawyers’ ethical obligations to their clients, including the attorneys’ duty of confidentiality. Attorneys also should make clear to the interpreters and translators the duty of confidentiality. A written agreement or other document outlining this obligation and confirming compliance may be wise.

The Opinion notes, in a footnote, that electronic and voice translation software and devices exist, but it states that analysis of such technology is beyond the scope of the Opinion. Still, the Committee does remind lawyers that they should understand relevant technology, as Comment 8 to Rule 1.1 states that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risk associated with relevant technology.”

Attorneys Also Should Be Mindful of Cultural Differences
The Opinion also discusses at length that there may be important cultural and social differences between a client and counsel that attorneys should seek to understand at the outset of their engagement.

For a variety of reasons, clients may have different understandings of the legal system, the courts, and stages of and possible outcomes in a litigation or transaction. A lawyer should help the client understand and work through these potential differences in achieving the goal of the representation. The Opinion offers specific ways for the attorney to seek to achieve this, including: identifying differences, understanding them and how they could bear on the representation, paying attention to implicit biases and other cognitive biases that may affect understanding, forming questions that may help elicit information for the representation, trying to explain the matter in multiple ways to help ensure that the client fully understands the legal issues, allowing for sufficient time for meetings, calls, or other forms of communication that will foster under­standing, and conducting additional research to heighten understanding. Importantly, a lawyer should not delegate any of these matters to a translator or interpreter. Instead, the lawyer remains responsible for taking these steps and ensuring open and successful lines of communication with the client.

Furthermore, a lawyer should not simply assume that an interpreter or translator has a deeper cultural expertise simply because that person is proficient in a client’s language. The Opinion emphasizes the attorney’s continuing duties to the client to understand and be cognizant of issues of culture and disability as they work together. Those duties are “inextricably intertwined with providing effective legal advice to a client,” and communication “is a two-way street.”

Planning Steps for Attorneys
ABA opinions are not binding on courts, but courts may still follow their reasoning and guidance when evaluating the propriety of an attorney’s conduct. Attorneys thus should be mindful of the important ethical duties outlined by this Opinion.

Even if they are not currently working with a client who does not share a common language, attorneys still should anticipate and be prepared for that set of circumstances to arise. Because a new client may need assistance on a time-sensitive basis, attorneys may wish to research in advance, interview, and obtain rates for qualified interpreters or translation service companies in their area, or seek out referrals from other attorneys.

When working with a client with whom there may be a language or cultural difference, it may be advisable to prioritize in-person meetings instead of phone calls, if possible. Reading the client’s body language, or seeing other non-verbal cues, may help the attorney better assess the client’s ability to understand. In addition, conducting a meeting in person gives the client a better opportunity to understand the attorney, ask questions, collaborate on goals, and avoid any miscommunications that may occur via email or in writing.

Counsel on both sides of an action or transaction also should be mindful of potential language and cultural differences that an opposing party or representative may have, and be willing to provide sufficient extra time and opportunity for accommodations to be made if they are needed.


  1. See U.S. Census Bureau, Quick Facts—Orange County, California, https://www.census.gov/quickfacts/orangecountycalifornia (stating that, over the period of 2016-2020, 45.2% of persons age five or more years spoke a language other than English at home; that number is slightly higher than the statewide percentage of 43.9%).
  2. California Rule of Court 2.890 also sets forth several requirements governing the pro­fessional conduct of interpreters who provide language services in a courtroom or litigation setting. The requirements include that the interpreter must be impartial, must disclose to the judge and all parties any conflict of interest, and must not disclose privileged communications between counsel and client.

Cathy Tran Moses is a complex litigation partner at Cox, Castle & Nicholson LLP in its Irvine office, and serves as a member of the OCBA’s Professionalism and Ethics Committee. She can be reached at cmoses@coxcastle.com.