Legal fictions: Confidential communications

Babel babble

One of the hurdles we have to deal with as criminal defense attorneys is the language barrier between us and our clients. A fair percentage of our clients don’t speak English or don’t speak it well enough for us to effectively communicate pertintent information.

The Court system provides for this by employing interpreters who stand next to defendants and translate anything that is being said verbatim. But that’s not good enough and doesn’t cover all communications between client and attorney. It’s also not fool-proof.

I could regale you for you hours with stories of interpreters that stretched the limits of their job description and started conversing with the clients. But I won’t – you’ve all been there.

Translating in court isn’t all that an interpreter is required for. What about letters to clients or phone calls or visits in person? Here, in CT, the interpreters office will send interpreters along on legal visits (if you ask for one) and will translate letters for you. This practice has inherent problems: the most important being confidentiality.

Any time you have a conversation with a client where a third party is present, confidentiality is waived. Anything you say at that meeting can be repeated in court. So what do we do? What do you do? Short of becoming fluent in Spanish and spanish-legalese, are there any options available? Without the assistance of the interpeter, one cannot communicate with the client, but if one does, then the conversation is not confidential.

Perhaps for those of you in private practice, there is an out. You use your own investigator who is fluent in Spanish. Those communications are probably still privileged. But for those of us in the public defender system, it creates a difficulty.

Ideally, there should be an independent interpreting service that enters into a contract with the pd’s office, wherein one of the conditions is confidentiality.

With the judicial interpreter’s office, there is only an implied confidentiality and, in reality, there is none whatsoever.

No one would actually try to use the information gained from such a meeting (or from “confidential” visiting rooms and telephones in prison) because the outcome would be a massive lawsuit and lots of headaches for the State, but that doesn’t mean that if push comes to shove, there actually is a cloak of confidentiality.

How does your State do it? For those in CT, how do you do it? Have you found a suitable workaround? Please share.

5 thoughts on “Legal fictions: Confidential communications

  1. Lil Spicy

    My office has a few full-time Spanish interpreters on staff. We use them for jail visits, written translations, investigations, whatever…..

    Then our office has quite a few attorney’s & investigators who are bi-lingual in various languages as well, and they always help out if need be.

    It’s not really a problem where I’m at.

    Reply
  2. shg

    In my neck of the woods, where the interpreter is working for the attorney, he’s considered an adjunct and covered by the attorney-client privilege, just as an investigator would be. The use of an interpreter thus doesn’t result in any loss of confidentiality.

    Reply
  3. nomadic

    Yes I have never heard of a jurisdiction where the presence of an attorney’s or client’s agent destroys confidentiality.

    If you’re in Connecticut there’s a statute on point:
    Sec. 52-146l. Disclosure of privileged communication by interpreter prohibited. Any confidential communication which is deemed to be privileged under any provision of the general statutes or under the common law made by a person with the assistance of an interpreter shall not be disclosed by such interpreter in any civil or criminal case or proceeding or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege.

    Reply
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