Part 2: Legal advisor obligations when dealing with a non-English speaking client

This is the second of two articles looking at legal practice with non-English speaking clients. Part 1 looked at aspects of contract law. This part considers the role of a legal advisor in New Zealand dealing with a non-English speaking client.

“Fundamentally the function of the lawyer is to assist the client in achieving the client’s objectives,” is the statement found in Duncan Webb, Kathryn Dalziel and Kerry Cook, Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis NZ Ltd, 2016). The lawyer’s duties arise from the general law, the client contract and professional rules. The three overlap and are cumulative.

The relationship generally begins with a formal retainer but that can be assumed from conduct. While the general commercial wisdom of a transaction may not be within the retainer, its actual and potential legal effects are. Rule 1.6 of the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008 provides:

“All information that a lawyer is required to provide to a client under these rules must be provided in a manner that is clear and not misleading given the identity and capabilities of the client and the nature of the information.”

This is consistent with the other obligations in elaborating the retainer, giving clear advice and keeping clients informed. The client must be treated with respect and courtesy and without discrimination. Lawyers are encouraged not to act in areas they are not competent. This would seem to include declining to act where they are unable to obtain instructions, impart advice or report in a language they understand to the requisite level.

Experience in certifying Property (Relationship) Act Agreements, advising as to wills (Re Sheward; Drummond v Davidson [2016] NZHC 1888) and dealing with clients with other disadvantages or disabilities will inform consideration of what is appropriate in dealing with the non-English speaker.

Assessing a client’s competency

It is often difficult to measure the level of comprehension of a client dealing with unfamiliar and often complex legal issues. When that client’s first language is not English the difficulties increase. Cultural differences common among those without English as their first language can also make it more difficult for an advisor to assess comprehension. In Mikitasova v ASB Bank Ltd [2016] NZHC 897 the legal advisor did not identify any lack of comprehension. Some cultures mandate agreement or expressions of agreement when dealing with those older, in positions of status or authority or of a particular gender.

Distinguishing between written and spoken language comprehension is also important. Often oral communications can obscure the lack of comprehension of written language. Further conversational language skills sufficient for social interaction may not enable the communication of complex or specialised subject matter. This, in turn, suggests caution in substituting clients’ friends or employees for formally engaged interpreters. Such informal interpreters may lack sufficient proficiency in either or both languages.

Australian solicitors Holding Redlich have a subsidiary, Adviceline Injury Lawyers, dealing with a variety of compensation claims with a free first appointment and no win, no pay services. They encourage the use of interpreters but are reluctant to work family members or friends in that role. They also admirably and starkly state: “If you are not receiving clear legal advice you can understand, there is little point receiving it at all.”

There are other reasons for care in using informal interpreters. In due course it may be necessary to prove what was discussed. The process by which advice is given is sometimes reviewed by the court when the quality or content of advice is put in issue (Jung v Templeton [2010] 2 NZLR 255). Independence of an interpreter may be important. The costs of dealing with this must be factored into the engagement with the objectivity of the interpreter maintained. Engaging and recording a qualified interpreter participating by telephone seems efficient and cost effective.

Engaging a formal interpreter

A solution would often be the involvement of an independent interpreter. If the interpreter is capable of discussing and comprehending the matters in English, and has suitable qualification in the relevant other language, it would seem likely that the lawyer will be able to receive instructions and report adequately. The level of technicality or complexity involved in the subject matter or legal issues may indicate a need for more specialised interpreters.

Interpreters are relatively common in court where they might interpret for parties to the case, witnesses or the judge. The Ministry of Justice has issued Guidelines for Interpreters which may be applicable more or less when not working at the court. Even where there is not a hearing, provided they have good notice, the courts will provide an interpreter for those wishing to interact with the court in another language. Sometimes the interpreter is not actually present but joins by telephone or video link.

The key competency standards give some insight to what is required of interpreters in court. Competency standards expected of an interpreter are to:

• Not alter, add, or omit anything when interpreting – the interpretation should be precise including, as far as possible, translating offensive language such as derogatory terms and swear words.
• Ask for a statement to be repeated, rephrased, or explained if it is unclear.
• Immediately acknowledge mistakes by informing the court and parties. The interpreter can ask for a pause, and inform the court when they are ready to continue.
• Immediately inform the court or tribunal if the interpreter and the person who requires the interpreter need to have a conversation for the sake of clarifying something.
• Immediately inform the court or tribunal if a statement or question cannot be accurately interpreted because of cultural or linguistic differences between the two languages. If possible, the interpreter should help the lawyer, representative, party, or presiding officer to re-phrase the statement or question so it can be accurately interpreted.
• Decline to interpret in a case, or ask to be replaced if the case has begun, if they feel their interpreting skills are not adequate for it.

There are commercial translation services providers as well as a number of independent providers (see NZTC International). Their services provide insight into the various aspects of interpreters’ roles. One such organisation offers consecutive, over the phone, simultaneous, video remote and whispered simultaneous interpreting and sight translation.

In terms of written language there may be choices that warrant consideration. An example is written Chinese which has two main strands. Simplified Chinese is used in China and Singapore. Elsewhere – such as Hong Kong and Taiwan – Traditional Chinese is more commonly used. It seems those who comprehend Simplified Chinese cannot be assumed to read Traditional Chinese while those who understand Traditional Chinese are likely to comprehend Simplified Chinese.

Access to justice is a significant issue for non-English speakers. It costs more and is slower. There are greater risks the facts will not be fully or accurately ascertained. Choices may not be fully understood by the client or instructions not understood by the lawyer. Working partnerships between solicitors who understand the clients’ own language and barristers who have the necessary specialist legal skills can minimise these factors.

Case law shows that language skills are only part of the necessary repertoire. In Young v Zhang [2016] NZHC 3018, [2017] NZCA 622 one party was a solicitor admitted in New Zealand who claimed, among other things, that the interpreter was faulty – and while he avoided a contempt finding, the judge’s adverse comments were referred to the New Zealand Law Society. In Lee v District Court [2017] NZCA 616 proceedings were so badly handled the court awarded indemnity costs against Yoon Lee (note that there seems to be more than one lawyer of this name) who was the lawyer acting for Ruying Jin. Greater care is still required with such clients.

Evidence from non-English speakers

Court rules provide for the filing of affidavits in languages other than English – see rule 1.15 High Court Rules 2016, rule 1.19 District Court Rules 2014, and rule 160 Family Court Rules 2002. They must be accompanied by an affidavit from an interpreter exhibiting the non-English affidavit and provide an interpretation of that affidavit into English. This would suggest two separate documents rather than alternating paragraphs separately verified as to translation.

Suitable procedure for witness statements, or briefs of evidence, was the subject of submissions and useful guidelines in a decision of Peter Jackson J in a custody dispute where witness statements were produced in English by witnesses who did not speak English (NN v ZZ [2013] EWHC 2261). The starting point was a rule in the same terms as our courts. Following submissions on the point his Honour also recorded these principles.

1. There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness’s own language.
2. If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.
3. If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.
4. The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit. (In New Zealand this would appear to place the solicitor in the role of witness possibly infringing professional conduct r13.5.1 and see Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 [148].)
5. A litigant in person should, where possible, use a certified interpreter when preparing a witness statement.
6. If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’s jurat or affidavit, using the words prescribed wordings.
7. Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.
8. If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.
9. If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.

In criminal proceedings the Crown will pay for interpreters while in civil cases the cost will be that of the party calling the evidence except if it is only required to cross examine (Li v Commissioner of Police [2016] NZHC 1383). In the discovery process there is no obligation to provide translations of non-English documents (Amatal Corp Ltd v Marahu Corp (2003) PRNZ 968).

Dealing with the changing nature of our society and facilitating access to our legal system, perhaps even justice, seems critical to the role of lawyers. It is hoped these two articles have contributed to that endeavour.

Alan Sorrell alan@sorrell.nz is a barrister at Bankside Chambers, Auckland. He has acted in a wide range of contract, partnership and shareholder disputes, securities regulation issues, and real property, trust and estate matters.