When language is a barrier

At the outset of a matter, solicitors should independently consider whether an interpreter or translator may be required to communicate legal advice in the client’s first language and for the client to provide proper instructions. Be alert to the risk that a client who appears to have a good command of English in ordinary conversation, may have difficulty understanding technical legal terms and advice and written English.

A failure to take reasonable steps to ensure legal advice is interpreted into the client’s first language can amount to a breach of a practitioner’s duty of care: Osei v P K Simpson & Co. Pty Ltd and Carney [2021] NSWDC 74; Osei v P K Simpson Pty Ltd [2022] NSWCA 13 and contravention of the Australian Solicitors’ Conduct Rules.

In some cases, a friend, family, or community member may be suggested by the client as a suitable interpreter. Be mindful that they may lack the necessary linguistic skills or could have a personal interest in the outcome of the matter, increasing the risk of the communication being distorted or changed. LPLC has also seen instances of undue influence or fraud by family members or friends acting as interpreters. The disclosure of confidential communications to these third parties may also risk waiving legal professional privilege.

In the litigation context, procedural rules in various Victorian courts and practice directions of VCAT and the Federal Court prescribe that generally (unless the court gives leave), a person should not act as an interpreter or translator if they are a family member, have a close personal or business relationship, or a financial or other interest in the outcome of the proceeding.

Bilingual solicitors play an important role in providing legal services to culturally and linguistically diverse clients. In each case, bilingual solicitors need to exercise their judgment as to whether an independent accredited interpreter should be retained to interpret and/or translate documents for their clients. A bilingual solicitor who is not natively fluent in the client’s language or dialect and/or is not a professional interpreter, may not pick up dialect and cultural nuances (which can be subject to wide regional variation) with the result that critical details are lost. Solicitors should also bear in mind the risks in performing the dual role of a solicitor as well as interpreter or translator of a document that may later be relied upon or challenged in court.

In court proceedings, even if the bilingual solicitor speaks the same language as the client, they should engage independent accredited interpreters where available. Further, affidavits or documents in a foreign language which are to be referred to or tendered into evidence usually must be translated by an independent accredited interpreter into English.

In the case of affidavits requiring interpreters, court procedural rules of various Victorian courts and the Federal Court typically provide that a party cannot rely on the affidavit unless the independent interpreter verifies certain matters in an approved form including that:

• before translating the affidavit, the interpreter had read and agreed to be bound by the code of conduct for interpreters prescribed by the court and been given an adequate opportunity to prepare to sight translate the affidavit
• the interpreter translated the entire affidavit to the deponent and
• the deponent confirmed that they understood the interpreter, agreed with the entire contents of the affidavit and then swore or affirmed the affidavit in the interpreter’s presence.

Always carefully check the procedural rules and practice directions in the relevant court or tribunal hearing the client’s case (1).

Practitioners can search for an accredited interpreter or translator on the websites of the National Accreditation Authority for Translators and Interpreters (NAATI) or the Australian Institute of Interpreters and Translators (AUSIT) using their online directories, and for less common languages, they can contact AUSIT directly. Be cognisant of the differences in languages and dialect when choosing an interpreter.

In 2022 the Judicial Council on Cultural Diversity published the second edition of the Recommended National Standards for Working with Interpreters in Courts and Tribunals setting out recommended practices and procedures for working with interpreters in courts and tribunals. The standards are a helpful resource for practitioners providing guidance on how to assess the need for an interpreter, on engaging and briefing interpreters and practical strategies for clear communication. The standards can be applied more broadly than litigation to all transactions and other matters such as taking instructions to prepare a will.

When working with interpreters, remember it is the practitioner (and not the interpreter) who is ultimately responsible to explain legal concepts and advice to the client clearly. Here are some basic practical tips.

• Properly brief the interpreter on the subject matter of what will be discussed. It is critical interpreters know the context as words can have different meanings according to the way they are used.
• Use plain English with simple, short sentences. Avoid using colloquial phrases and idioms.
• Don’t assume that different cultures will have the same understanding of basic concepts as you.
• Frequently check for understanding. Ask the client to repeat back to you (through the interpreter) their understanding of what has been said.
• Visual aids may assist in some cases.

Always document the key matters discussed and interpreted. There are potentially different ways this can be done. One option may be to record (with consent) the client meeting or discussion. Alternatively, practitioners could obtain an affidavit from the interpreter evidencing the interpreter’s qualifications, setting out details of the meeting and matters that were discussed and interpreted by them and that the client had confirmed that the advice was understood. If an affidavit is not practicable in the circumstances, another option might be to provide the interpreter with a file note of the client meeting and ask them to verify in writing that the note is a true and accurate summary of what was said.

Practitioners advising clients in the context of litigation, should always first check the requirements of the procedural rules and practice notes of the relevant court or tribunal.

Any affidavit or other verification process should be arranged and completed contemporaneously with the client meeting. LPLC has seen cases where a solicitor’s advice was later disputed on the grounds that it was allegedly interpreted incorrectly or not at all, or otherwise was not understood such that the client could not make an informed and appropriate choice about their options. In one case a solicitor sought unsuccessfully to rely on evidence from an interpreter who had translated advice provided at a client meeting many years earlier, but the interpreter was no longer practising in Australia and could not be located to provide an affidavit or statement.

(1) See for example: Supreme Court (General Civil Procedure) Rules 2015 (Vic): r43.02.1, Order 44A and Form 44AA; County Court Civil Procedure Rules 2018 (Vic): r43.02.1, Order 44A and Form 44AA; Magistrates’ Court General Civil Procedural Rules 2020 (Vic): r43.02.1, Order 44A and Form 44AA; VCAT, Practice note – PNVCAT9 - Interpreters in tribunal proceedings, 8 December 2022; Federal Court of Australia, General Practice Note, Working with Interpreters (GPN-INTERP), 24 March 2023.