The role of the interpreter in legal practice
by Rachel Spencer
Lawyers cannot assume that their clients are able to speak and read English. Interviewing a client involves being certain that the client has a level of English proficiency to the extent that the client understands what the lawyer is saying. The client must be able to communicate with the lawyer, ask appropriate questions and give competent and accurate instructions.
A rudimentary comprehension of the English language is not sufficient for a client to fully understand his / her rights and to convey all of the information that a lawyer requires in order to provide comprehensive advice. The law is already complex and intimidating for the lay client. Linguistic factors add another dimension to the lawyer-client relationship. If your client is not proficient in English, you should obtain additional professional help in order to ensure that communication is actually taking place.
An interpreter’s role is to facilitate communication between two or more people who use different languages, being either spoken or signed. This means transferring messages from one language to another in a way that makes their intended meaning as understandable to the recipient as possible.
An interpreter facilitates communication between the client(s) and the English speaker(s) by transferring their utterances from one language to another as accurately as possible and in an unbiased and non-judgemental manner. The interpreter is not responsible for what is said by either party, but is responsible for ensuring that everything that is said is communicated accurately in the other language.
When engaging the services of an interpreter, it is important to consider a professionally accredited interpreter rather than just a family member or friend of the client. Family members may not have the requisite objectivity and may inhibit the client from giving detailed instructions, especially in sensitive matters like family law or sexual assault cases.
Professional interpreters in Australia are accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). NAATI is the only authority that issues accreditations for practitioners who wish to work in these professions in Australia.
NAATI accreditation tests are available in 61 of the major language groups of the Australian community. [NAATI “Recognition” based on proficiency in English, interpreter training and interpreter work experience is also available in languages for which NAATI accreditation is not available.] There are different levels of NAATI accreditation: Paraprofessional, Professional and Conference.
An interpreter who is qualified at Paraprofessional level (formerly known as Level 2) has a level of competence in interpreting for the purpose of general conversations and non-specialist dialogues.
Lawyers seeking to engage an interpreter should ask for an interpreter who is NAATI accredited with Professional Interpreter level competence (formerly known as Level 3). This is the minimum level recommended by NAATI for work in banking, law, health, and social and community services. There are two more levels beyond the Professional level which are for Conference Interpreters (levels 4 and 5).
All interpreters in Australia are required to adhere to the principles of the AUSIT (Australian Institute of Interpreters and Translators) Code of Ethics. These ethical principles include accuracy, confidentiality, impartiality and competence. In Australia, clients who use the services of a NAATI-accredited interpreter can expect that whatever information they divulge during the course of the interpreting service will remain confidential. They can also expect the interpreter to remain completely impartial at all times.
It is appropriate in certain circumstances for lawyers working with interpreters to brief them prior to the interpreting session and/or debrief them afterwards. However, the interpreter should interpret everything that is said back to the client, and should under no circumstances engage in a private conversation with the lawyer.
When working with an interpreter, lawyers should speak at all times to the client, not to the interpreter. This means keeping eye contact with the client, even when the interpreter is speaking. Use short sentences, and give the interpreter time to interpret everything that you say. Make sure that you give the client time to respond, and then allow time for the interpreter to interpret the client’s words back to you.
This is undoubtedly a complex and sometimes frustrating process, but it is important to remember that the client’s rights are paramount, and that in acting in the best interests of your client, you must ensure that the client understands what you are saying, and feels comfortable talking to you, even though it is through a third party.
Lawyers working with interpreters will obtain the best service if they use clear language. The interpreter might ask for repetition, rephrasing or clarification if a message lacks clarity and should not be held responsible if the non-English- speaking client does not understand the message because of concepts that are linguistically or culturally unfamiliar to them.
The interpreter should alert the lawyer if a concept is untranslatable or culturally inappropriate. The interpreter must tell the client what they are saying to the lawyer. So for example, if the lawyer is talking about precedents, the interpreter might know the word for precedent, but the client may not understand if the client comes from a different legal system. The interpreter should then say to the lawyer that this concept does not exist in the client’s culture.
Contact between the interpreter and the English-speaking lawyer and non- English-speaking client should cease as soon as the interpreting service is completed. This means that the interpreter cannot be expected to clarify any information after the interpreting service has ended nor to provide other help or act as a friend to the client. The lawyer should not ask the interpreter to give an opinion about the client’s health or state of mind.
Do not ask the interpreter direct questions about the political situation of the client’s home country or whether the interpreter believes that the client is telling the truth. Nor should a judicial officer ask such questions of an interpreter. The interpreter’s role is to facilitate communication with the client/witness and should not be treated as an expert witness on the subject of language or culture.
It is important to note the difference between an interpreter and a translator. Translators are concerned with the written word. They transfer written text from one language into another, undertaking assignments which range from birth certificates to more complex written materials, such as commercial material, articles in specialised professional journals and literature.
Rachel Spencer is the Director of Professional Programs at the University of South Australia and is a member of the NAATI South Australian Regional Advisory Committee. This article was prepared with the assistance of members of the NAATI Regional Advisory Committee.
This article was published in The Bulletin, Law Society of South Australia, Volume 38, Issue 2, Pages 36- 37, and is reproduced with the kind permission of The Bulletin.