Florida Bar Journal

“What We Got Here Is Failure to Communicate”: The Legal, Ethical, and Monetary Considerations of Effective Communication

[Editor’s note: Endnote 1 refers to the title]

The rejection of a potential client because that person does not speak English or may be Deaf^[2] is considered to be discrimination — the decision to reject is based upon a protected status. For a person with limited English proficiency (LEP), it is considered national origin discrimination, and for a person who is Deaf, it is considered disability discrimination. However, the legal and ethical considerations for lawyers have been murky, and as a result, many persons with communication disabilities or LEP often cannot find competent counsel willing to represent them.

On October 6, 2021, the American Bar Association issued Formal Opinion 500 — “Language Access in the Client-Lawyer Relationship.”^[3] The opinion clarifies that a lawyer’s duty for communication and competence extends to the requirement to obtain an interpreter or translator for the client who has a communication disability or may have limited English proficiency and recognizes the importance of conveying accurate information in a culturally appropriate method.

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.^[4]

While the ABA opinion focused on the rules of competence^[5] and communication,^[6] the failure to effectively communicate due to disability or national origin would also constitute misconduct under Rule Reg. Fla. Bar 4-8.4(d), as it would be discrimination on a protected class that is prejudicial to the administration of justice.

While it would have been refreshing if the profession had an epiphany and came to the realization that such discrimination was unethical, there is a strong legal underpinning for this opinion, both in the Americans with Disabilities Act (ADA) and in Title VI of the Civil Rights Act of 1964.^[7] The ADA specifically deems discrimination as:

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden….^[8]

Auxiliary aids and services includes the range of services or products necessary to ensure that information is conveyed to people who are Deaf or blind, such as interpreters or qualified readers.^[9]

The Civil Rights Act of 1964, as well as the Florida Civil Rights Act, prohibit discrimination based on national origin, and English language requirements cause a disparate impact on the basis of national origin.^[10] The regulations of the employment discrimination provisions of Title VII of the Civil Rights Act presume “English only” rules not required as a business necessity presumptively violate Title VII.^[11] Title VI requires recipients of federal financial assistance to take reasonable steps to make their programs, services, and activities accessible by eligible persons with limited English proficiency.^[12] This applies to any entity that is a recipient or subrecipient of the federal government, such as a state agency or health-care facility. The difference between Title VI and the ADA from other civil rights protections for national origin, is that Title VI and the ADA include an affirmative obligation to provide language assistance, while the other civil rights protections merely obligate the entity not to discriminate against the person. However, for a lawyer, when you accept a LEP client and fail to effectively communicate, then this failure can lead to malpractice or discipline.

What Is Effective Communication?

The ABA recommends that if communication with “reasonable efficacy” is lacking,

the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice.^[13]

In 2017, the 11th Circuit Court of Appeals clarified the definition of effective communication under the ADA.^[14] The standard for effective communication is that a person with a disability should be afforded a level of communication that is substantially equal to that afforded to a non-disabled person.^[15] To be ineffective communication, a patient with a disability must experience a real hindrance, because of the disability, which affects the ability to exchange material information with his or her lawyer.^[16] Similarly, for a person with limited English proficiency, that person should be afforded a level of communication that is substantially equal to that afforded to a person who speaks and understands English.

Is an Interpreter or Translator Required?

Initially, if there is any question relating to a potential or current client’s understanding, the client should be told that he or she will be provided an interpreter upon request, and then there should be a discussion regarding what type of interpretation or accommodation is needed. Rule Reg. Fla. Bar 4-1.4 provides that a lawyer has a duty to explain “a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”^[17] As such, from the inception of the relationship, there needs to be a clear understanding of the representation agreement and the goals of the representation. In a lawyer-client relationship, most aspects of the relationship, from a retainer to explaining a plea agreement are the type of important and complex issues that require a qualified interpreter. A qualified interpreter for a legal assignment is able to interpret effectively, accurately, and impartially, both receptively and expressively, using specialized vocabulary required in a legal setting.^[18]

The requirement under the ADA is that the “type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.”^[19] In addition to private parties, the Department of Justice enforces the ADA. Since 2006, the Department of Justice has reached a settlement agreement with three law offices that refused to provide interpreting services for the Deaf.^[20]

There are circumstances where a client decides to use a family member or friend as an interpreter or may understand some English. However, there are many circumstances where the lawyer needs to ensure that the client has a full understanding of the communication due to the importance of such information. There are other circumstances where it is unacceptable to use a family member as an interpreter — even when requested by the client. The primary example is when the client may be a victim of domestic violence, and the chosen interpreter may be the abuser. In addition, there could be times in which the information should be private to the client, such as sensitive information, or information regarding monetary transactions in which the family member interpreter may benefit.

Interpreter for Those Who Are Limited English Proficient (LEP)

Florida courts have developed rules for the certification and regulation of spoken-language court interpreters.^[21] Court interpreters who are certified have passed a written and oral examination to establish proficiency prescribed by the Florida Court Interpreter Certification Board.^[22] While a certification can be requested from an interpreting service, the Office of the State Courts Administrator maintains an interpreter registry for use by the public.^[23] Furthermore, interpreters can be provided remotely by video or telephone. In addition to using remote interpreters for languages that are rarely heard in the United States, it is also useful to avoid conflicts of interests in a rural area, and to limit the number of persons in a certain area because of COVID-19.

Interpreters for the Deaf

Unlike spoken-language interpreters, there is no Florida standard for qualified sign language interpreters, and currently, the Registry of Interpreters for the Deaf (RID) has imposed a moratorium on legal interpreters and has not qualified new legally certified interpreters since 2016.^[24] The Registry of Interpreters for the Deaf certifies interpreters and has produced a standard practice paper for legal interpreting.^[25] However, to determine who is qualified to interpret in a legal environment, a lawyer must ask about specific legal experience and knowledge of legal terminology or rely on a sign language interpreting agency. Florida interpreters and agencies can also be found on the Florida Registry of Interpreters for the Deaf website^[26] and the RID website.

All persons with hearing disabilities do not communicate in American Sign Language (ASL) or any sign language. Accordingly, it is important that the lawyer ask about the language needs of the client. Many people that become deaf later in life do not understand any type of sign language, but instead may rely on real-time transcriptions (such as a court reporter) to understand. In no circumstances is lip reading ever effective for important information, as only 30% of speech sounds can be lip-read, even under the best conditions.^[27]

For Deaf persons who primarily communicate in American Sign Language (ASL), ASL is their first language, and it is common that their English understanding is not proficient. ASL is a visual language with a different grammatical structure than written or spoken English. As with any foreign language, both written and verbal English must be interpreted into sign language.

For each legal assignment, the standard practice is that a team of two interpreters are required for each assignment because of the complexity of the information, and the interpreters switch roles between active interpreter and observer at frequent intervals.^[28] It is a good practice to provide documents for background prior to the assignment. Lastly for court proceedings, the court should retain two interpreters for the proceedings, and the attorney for the Deaf client should have his or her own interpreter to ensure that attorney-client information is protected and to monitor the accuracy of the court attorney so objections can be made to the interpretation.^[29]

Some individuals who are Deaf may have educational, cultural, or additional disability factors that may affect their ability to understand American Sign Language. There is a portion of the Deaf population that uses “home signs” that are created in their household with their hearing family and may not be taught ASL or English. For a Deaf person who is not fluent in any sign language, a Certified Deaf Interpreter (CDI) may be needed. A CDI is an intermediary interpreter who is Deaf or hard of hearing, themselves, that is used with an ASL interpreter to facilitate understanding with the client. In criminal proceedings, a Deaf defendant may be regarded as linguistically incompetent to stand trial. Linguistic incompetence means the Deaf defendant does not have the language skills both in English and signing, nor does he or she have the background and conceptual knowledge about legal concepts to be able to work with his or her attorney and participate in his trial.^[30] To determine if a criminal defendant is linguistically incompetent, a sign language interpreter should be able to immediately recognize the person’s lack of understanding, and then the proper course of action would be to retain an expert to determine the defendant’s linguistic abilities and understanding of legal concepts.

Sign language is not universal, and as there are many different spoken languages for different countries, there are also many different variations of sign languages. There are different types of sign language depending on their education, such as cued speech, and signing exact English. Furthermore, tactile sign language interpreters make manual signs for a deafblind person, and there are also haptic signs which are physical signals produced on a deafblind person’s body that provides information about the environment where the interaction is taking place or nonverbal expressions.

As with spoken language interpreters, video interpretation is available for sign language interpreters. Video remote interpretations is usually acceptable in situations in which the connection is adequate and the image does not lag.^[31] In addition, video remote interpreting is best when it is a one-to-one conversation in an office environment, where the camera can view both the Deaf person’s face and hands, and the Deaf person can see the interpreter clearly. Video relay loses its effectiveness when you have more than one speaker or signer, when there is movement that the camera does not follow, or the situation is emotional or extremely important.

Auxiliary Services for the Blind or Visually Impaired

In the day-to-day practice of law, visual materials are used constantly, and when representing a client, or meeting a potential client, who is blind or visually impaired, the right to understand visual materials is essential for these clients to intelligently participate in decisions. Prior to screenreader software, auxiliary aids to make visually delivered materials available to the blind included qualified readers, audio recordings, and Brailled materials. Screenreader software converts text to speech, as long as the material is provided in an accessible format.

The Florida Supreme Court has been proactive in ensuring that Florida courts comply with providing communication access to the blind as a matter of constitutional due process as well as the ADA for blind defendants. In Gabriele v. State, 99 So. 3d 943 (Fla. 2012), the Florida Supreme Court granted a petition for mandamus requiring the intermediate appellate court to accept pleadings filed in Braille and communicate with the blind appellant in Braille-formatted documents. Notably, the decision ended with “we trust that the Fourth District Court of Appeal will fully comply with the dictates of this order when presented with similar situations in the future.” Notwithstanding this directive, the Department of Justice entered into a settlement with Orange County Clerk of Courts in Florida in 2014 to ensure that electronic court documents were accessible to an attorney who is blind and other individuals who use screenreader technology.^[32]

The Supreme Court promulgated guidance guidelines for all documents filed in Florida state courts, and the documents must contain the following elements:^[33]

1) Documents must be properly prepared using built-in document layout features found in the word processing software (e.g., proper use of styles, heading levels, bulleted items, columns, and tables.)

2) Images and/or non-text elements must include alternative text (alt text) descriptions.

3) Charts and graphs must have either an alternative text description or provide a description in the text in the immediate proximity of the chart or graph.

4) Data cells in tables must be associated with row and column headers.

5) Information in tables must read from left to right and from top to bottom.

6) Columns must be created properly using built-in document layout features found in the word processing software to ensure correct reading order.

7) Multimedia presentations must include synchronized captions.

8) Color must not be the only method used to convey important information.

9) PDF documents must be tagged, have a logical reading and tab order, include bookmarks for large files (more than 10 pages), have a language specified, and pass the §508 and Adobe Full Check found in Adobe Acrobat software.

These are appropriate guidelines to follow in all documents, not only those that are filed with the court system.

Communication Issues with Other Disabilities: Understanding Clients and Ensuring that the Client Understands

Notwithstanding the type of disability a client may have, it is a duty to ensure that a client, or a potential client, has a full understanding to the best of his or her ability, and the right to express his or her decision on the course of action chosen. Rule Reg. Fla. Bar 4-1.14 requires a lawyer to, as much as reasonably possible, maintain a normal client-lawyer relationship with the client, and only seek the appointment of a guardian or take other protective action when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.^[34] For example, the comment to Rule 4-1.14 states:

When the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.

As such, if a client has a cognitive, developmental or psychiatric disability, an attorney is obligated to take the time to listen to the client’s concerns and explain the issues to the client in the method that the client understands best. For most attorneys, this is probably the most difficult accommodation to provide. Issues must be stated in clear, easy-to-understand language. It also inures to your and your client’s benefit to find easily understandable descriptions of the goals of the representation and what to expect.^[35]

A person may have a speech disability that makes it difficult to understand, as a result of a number of different conditions, and there are some auxiliary aids or devices that can be used, such as portable devices that write and/or produce speech, typing, writing, or using sign language.

What Are the Courts’ and Other Entities’ Obligations to Provide Language Access?

For spoken-language interpreters, the obligation for providing an interpreter falls mostly on the attorney whose client needs an interpreter, unless it involves a criminal or dependency action or involves another fundamental right.^[36]

The Americans with Disabilities Act requires all public accommodations and public entities to provide interpreters or other auxiliary aids or services and requires that public accommodation or public entity to pay for the auxiliary aid or service. This applies to interpreters and readers, but does not require these entities to pay for personal devices, such as a wheelchair, computer, or an iPhone.^[37] For court or court-ordered activities, if an interpreter or other communication assistance is required because of a disability, each judicial circuit, district and the Supreme Court has an ADA coordinator, and requests can be made for accommodations through the coordinator.^[38] Similarly, pursuant to Federal Judicial Conference policy, federal courts also have a coordinator to respond to requests.^[39] If an accommodation is required for a court proceeding that will have a direct effect on a procedure, such accommodation should be made by motion to the court. This would include ensuring that exhibits are in an accessible format for a person who is blind or low-vision or requiring a hearing to take additional time to accommodate a speech-impaired witness. Furthermore, a court must ensure that its ordered activities, such as parenting classes, probation activities, or driving school also provide effective communication assistance.

Private entities that are owners and operators of public accommodations, such as lawyer’s offices, mediator’s offices, or court reporter’s offices all have a concurrent duty to provide effective communication to ensure that an equal benefit is provided by the program or service of that entity.^[40] The result should be that the person with a communication disability is not required to pay a surcharge because of the communication disability.^[41] There is no provision that dictates whose responsibility it may be, and best practice is that the interpreter is arranged by and at the cost of the entity that is hosting the event.

Furthermore, to the extent that a lawyer referral service or referring attorney retains compensation and agrees to share joint representation for a client, that entity is similarly responsible for costs of the client.

Who Pays?

Under ABA Formal Opinion 500 and Rule 4-1.16(b)(4), a lawyer may withdraw from a case if the representation “will result in an unreasonable financial burden on the lawyer.” For persons with limited English proficiency, this may be the standard; however, the Americans with Disabilities Act has a different standard. Instead of an “unreasonable financial burden,” the ADA requires that such communication aid or service to constitute an “undue burden,”^[42] which means a significant difficulty or expense considering the size and the overall resources of an organization.^[43] As such, a sole practitioner working from his home would have a different measure of “undue burden” than a small- to medium-size law office.

However, interpreter costs are usually deemed to be costs that can be obtained by the prevailing party in litigation.^[44] Furthermore, a small law firm with less than $1 million in revenue can take advantage of the Disabled Access tax credit, which provides a tax credit of 50% of all amounts over $250 for a maximum of $10,000.^[45] All factors must be considered, including tax credits, before a determination of undue burden is made.

Diversity and Inclusion in Practice

It is part of the basic creed of a lawyer to make the law and our legal system available to all. For a person that has a communication disability or has limited English proficiency, it remains difficult to find a lawyer who is willing to take the time and expense to assist them. The goal of diversity is to make a profession that reflects the society in which we live. Over 20% of the United States population consists of persons with disabilities, and, as such, diversity must include disability. Providing accommodations and communication assistance is not only the legal and ethical practice of law, it is a direct and practical way to demonstrate your commitment to diversity and inclusion.

[1] “Failure to Communicate Scene,” Cool Hand Luke, directed by Stuart Rosenberg (1967).

This column is submitted on behalf of the Public Interest Law Section, Sarah L. McArthur, chair, and Sabarish P. Neelakanta, editor.