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February 2013 Volume 18 Number 5

GBJ Legal Departments 10 4 From the President 18 The Criminalization 8 From the YLD President of ’s Youth 30 Bench & Bar by J.Tom Morgan 36 Office of the General GBJ Features Counsel 18 38 Lawyer Discipline Working with an Interpreter: 40 Law Practice Management Providing Effective 42 South Georgia Office Communication and Ensuring 44 Pro Bono 36 Limited English Proficient Clients 48 Section News Have Meaningful Access 52 Member Benefits to Justice by Jana J. Edmondson 54 Writing Matters 56 Professionalism Page 24 60 In Memoriam Diversity Program Celebrates Book Review its 25th Anniversary 64 by Marian Cover Dockery 66 CLE Calendar 70 Notice 28 Classified Resources Cubbedge Snow Jr. and 71 J. Douglas Stewart Win 72 Advertisers Index 44 James M. Collier Award by Len Horton

Cover Photo: State Bar President Robin Frazer Clark pictured with lawyer-legislators in the (Bottom) Speaker of the House Rep. . (Left to right, first row) Rep. Regina Quick; Rep. LaDawn Jones; Sen. Jesse Stone, Chairman, Judiciary Non-Civil; Rep. , Chairman, Judiciary 64 Non-Civil; Rep. , Chairman, Judiciary; Rep. Edward Lindsey, Majority Whip. (Second row) Sen. Ronald B. Ramsey Sr., Chairman, Urban Affairs; Rep. Johnnie Caldwell Jr.; Rep. ; Rep. Mike Jacobs, Chairman, MARTOC; Rep. ; Robin Frazer Clark, President, State Bar of Georgia. (Third row) Rep. ; Rep. ; Rep. ; Sen. Bill Cowsert, Chairman, Higher Education; Rep. Dustin Hightower; Rep. Stephen Allison; Rep. Dar’shun Kendrick. (Fourth row) Rep. ; Sen. Lindsey Tippins, Chairman, Education and Youth; Rep. ; Sen. Judson Hill, Chairman, Finance; Sen. Curt Thompson, Chairman, Special Judiciary. (Fifth row) Rep. ; Sen. , Governor’s Floor Leader; Sen. Joshua McKoon, Chairman, Judiciary; Rep. Tom Weldon, Chairman, Juvenile Justice. (Sixth row) Sen. William T. Ligon Jr., Chairman, State and Local Governmental Operations; Rep. B.J. Pak; Rep. , Minority Leader; Rep. Larry O’Neal, Majority Leader; Rep. Brian Strickland. (Seventh row) Rep. Jay Powell, Chairman, Appropriations Subcommittee on Public Safety; Sen. John Crosby, Chairman, Banking and Financial Institutions; Sen. Cover photo by Peter Stokes Media Jason Carter; Rep. Andy Welch. Not pictured: Rep. Christian Coomer. GBJ Feature

Working with an Interpreter Providing Effective Communication and Ensuring Limited English Proficient Clients Have Meaningful Access to Justice

by Jana J. Edmondson

egal malpractice experts and Georgia ethi-

cal rules counsel Georgia lawyers to com- L municate effectively with their clients.1 Communication can be difficult with any client, but what if the client cannot communicate with you in

English? Imagine this: Maria has been covering up bruises for the past 35 years of her marriage. She finally took the first step to end the abuse and has filed for divorce. Although Maria speaks some English, she is not fluent. Her first language is Italian. Maria has lived in Georgia for more than 40 years. She is a retired fac- tory worker and often finds it difficult to communicate because of her limited English proficiency. hard on her, as she frequently begins to cry and gets easily flustered when answering your questions. You She contacts you, and you agree to represent her. spend extra time translating court documents for her Perhaps you grew up speaking Italian with your own and explaining what she should expect during the grandparents or studied it in college; nonetheless, process. In further preparation for the Rule Nisi, you you have no problem understanding her. She seems ask Maria whether she would like an interpreter at to understand you pretty well, too. During various the hearing to help her communicate. She tells you conversations, you observe that this situation is very no. She says that she trusts you and prefers for you

18 Georgia Bar Journal to communicate for her, not some stranger. You decide to oblige her wish and do not request an inter- preter for the Rule Nisi. STOP. Was that in the best interest of your client? Before you make that decision, consider the following. What is LEP? A limited English proficient (LEP) person is one who speaks a language other than English as her primary language and/or who has a limited ability to read, speak, write or understand English. The term LEP includes individuals who are hearing impaired as well. As an attorney, you may find yourself rep- resenting clients who are LEP. Their Vote Electronically in 2013 limited English proficiency will add an additional layer of responsibility and Opt Out of Paper Ballots to you as their advocate. It is your duty to protect their meaningful The State Bar now offers the option to vote access to the judicial system. You electronically in Bar elections, in lieu of receiving a will need to ensure that your clients paper ballot. are able to communicate effectively with you, the court and any other Contact the State Bar’s Membership Department at relevant parties. [email protected] by Friday, March 1, to opt Why Use an Interpreter? in to electronic voting. (If you don’t opt in, you will As an attorney, you first need to continue to receive a paper ballot.) be able to focus solely on providing effective advocacy of the issues and When the voting site opens this spring, all active not on the language barriers that members who have opted to vote electronically will exist. Second, using an interpreter receive an email which explains how to log in and ensures that a client understands the information that you provide to vote. Easy step-by-step instructions will help you her as you intend for her to receive complete your ballot online. it. Third, using the interpreter will ensure that the client is able to communicate her questions and/or concerns to you effectively. Using an interpreter will help you adhere to your ethical obligation to com- municate effectively with clients. Use of an Interpreter/ Ethical Considerations and Attorney-Client Privilege The Georgia Rules of Professional Conduct specifically require an attorney to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa-

February 2013 19 tion.”2 Failing to secure an inter- Appointment and local courts shall be responsible preter for an LEP client prevents an Compensation of for developing and testing vari- attorney from fulfilling that ethical ous approaches of compensation obligation of effective communi- the Interpreter that are consistent with guidelines cation. Failing to do so may also The Supreme Court of Georgia set by the Georgia Commission affect a client’s right to due pro- Rules on Use of Interpreters for on Interpreters (Commission) and cess, right to be present and right Non-English Speaking and Hearing Georgia law, until such time as the to effective assistance of counsel. Impaired Persons in Georgia Commission implements a unified, For bilingual attorneys, it may also (Interpreter Rules) make it clear statewide system.11 Attorneys at prove to be in the best interest of that the responsibility of finding Georgia Legal Services Program the client to employ an interpreter and appointing an interpreter, in have developed a set of standard when the attorney needs to ensure applicable cases, falls on the court pleadings, including a Motion that the client understands a very and not on litigants or attorneys.8 for Interpreter and a supporting complex issue or a settlement In its March 8, 2012, letter to the brief.12 These pleadings formal- agreement. Using an interpreter North Carolina Administrative ize the request for an interpreter during preparation for a hearing Office of the Courts (AOC), the and are often helpful in educat- or trial also allows the client the U.S. Department of Justice (DOJ) ing the court on current federal opportunity to get accustomed to concluded that budget constraints and state laws requiring that LEP communicating with an interpreter do not excuse a federal funding clients have meaningful access to before the first day of court. An recipient’s failure to provide LEP the courts. in-person interpreter is always pre- individuals with meaningful access ferred over a telephonic interpreter to court operations in a case.9 Legal Background because communication is more Specifically, Assistant Attorney Title VI of the Civil Rights Act of effective when it can be provided General Thomas E. Perez stated that 1964 requires that all recipients of face-to-face. federal funding make reasonable B ilingual attorneys should be any focus only on the financial efforts to provide LEP persons with aware that it is very unwise to costs of providing additional meaningful access to their pro- wear the hats of both advocate and interpreter services ignores the grams and services at no cost. This interpreter for a hearing or trial. significant fiscal and other costs includes federal and state courts Wearing both hats often presents of non-compliance with the of law as well as administrative an ethical conflict of interest.3 AOC’s obligation to take rea- forums.13 Ten years after enact- Communications between attor- sonable steps to ensure access ment of Title VI, the U.S. Supreme ney and client are privileged if the to court operations for LEP indi- Court interpreted Title VI by hold- interpreter is acting as the agent viduals. It costs money and time ing that failure to provide instruc- of the attorney.4 Specifically, the to handle appeals and reversals tion in Chinese to a group of 1,800 content of attorney-client commu- based on the failure to ensure non-English speaking students of nications where an interpreter is proper interpretation and effec- Chinese national origin violated present is just as privileged as if the tive communication. Similarly, Title VI’s ban on discrimination interpreter is not present. Attorneys delays in providing interpreters based upon national origin.14 should be aware, however, that if often result in multiple continu- It was not until 2000 that fed- the interpreter intentionally or acci- ances, which needlessly waste eral agencies and federal finan- dentally reveals privileged infor- the time and resources of court cial recipients seriously began mation to a third party, the privi- staff. And ineffective commu- to address LEP compliance. On lege will be waived.5 For exam- nication deprives judges and Aug. 11, 2000, President Clinton ple, suppose that your interpreter juries of the ability to make issued Executive Order 13,166,15 also works in another occupation, reliable decisions; renders vic- which had two main purposes. which classifies her as a mandato- tims, witnesses and defendants First, the Executive Order pro- ry reporter under Georgia law.6 If effectively absent from proceed- vides guidance to all recipients information regarding child abuse ings that affect their rights; and of federal funds administered by is discussed during a client meet- causes other significant costs the respective agency. Second, the ing, the interpreter’s statutory duty in terms of public safety, child Executive Order requires federal to reveal that information to a third welfare, and confidence in the agencies to develop an internal party overcomes the fact that the judicial system.10 LEP policy compliant with Title information was obtained from a VI and the Executive Order. The privileged communication.7 It is Although Georgia currently latter did not create any new important that the attorney discov- does not have a unified, state- obligations or duties; rather, it er this type of conflict before using wide compensation system, the was a mechanism for enforcing the particular interpreter. Interpreter Rules state that the pre-existing obligations.

20 Georgia Bar Journal Find people worthy of the name on the door. That was my mentor’s advice. But the landscape has changed over the last few years. Profits are harder earned and have to be more wisely spent. So I’m getting help to keep our practice healthy enough to attract and retain top talent. After all, it might as well be my name on the door. WE SHINE WHEN WE HOLD OURSELVES TO A HIGHER STANDARD.

Our Legal Specialty Group provides a dedicated team with tailored solutions to meet the unique financial needs of attorneys and their firms. Visit suntrust.com/law The Supreme Court of Georgia native dispute resolution pro- circumstances, an LEP person has held that an interpreter must grams, pro se clinics, criminal is denied meaningful access to be appointed for those who diversion programs, anger man- court operations in a way that a cannot communicate effectively in agement classes, detention facili- fluent English speaker is not. The English in criminal cases.16 In Ling ties, and other similar offices, DOJ Guidance emphasizes the v. State, the Court also strongly stat- operations and programs, shall importance of interpreter com- ed that meaningful access to justice comply with Title VI of the Civil petency and states: “Competency must be provided in all Georgia Rights Act of 1964.19 requires more than self-identifi- courts, including civil courts, for per- cation as bilingual. Some bilin- sons who are limited English profi- Additionally, Georgia has two gual staff and community volun- cient in order to comply with fed- statutes creating rights to inter- teers, for instance, may be able eral law. Specifically, the Court’s preters. In domestic violence to communicate effectively in a opinion states that “vigilance in cases brought under Chapter 13 different language when com- protecting the rights of non-Eng- of Title 19 of the Georgia code, municating information directly lish speakers is required in all of LEP litigants and witnesses have in that language, but not be com- our courts.”17 a statutory right to a free court- petent to interpret in and out of In February 2012, the American appointed foreign language or sign English.” DOJ Guidance, 67 Fed. Bar Association (ABA) adopted language interpreter.20 The statute Reg. at 41,461.26 Standards for Language Access in mandates that the court-appointed Courts.18 The purpose of the ABA interpreter be compensated out of Practice Tips for Working Standards, which are not binding the local victims’ assistance fund.21 with an Interpreter on state courts, is to assist state Likewise, hearing impaired liti- courts in designing, implementing gants and witnesses have a statu- Before the Client Meeting and enforcing a comprehensive tory right to an interpreter.22  Discuss confidentiality— system of language access services Recognizing that mere bilin- explain to the interpreter that that is suited to the needs of the gualism does not qualify an indi- she is prohibited from sharing communities that they serve. vidual to be an efficient interpret- the content of conversations Georgia attorneys have had er, the Interpreter Rules further with a third party guidance on language access and state that interpreters should be  Proper positioning (varies interpreter use since 2001, by vir- appointed or hired with preference depending on forum) tue of the Interpreter Rules cited for a “Certified” interpreter. If a  Attorney should face the earlier. In 2003, the Court cre- “Certified” interpreter is unavail- client ated the Georgia Commission on able, then an interpreter who is  Interpreter generally sits Interpreters, whose mission is to recognized by the Commission as next to or behind the client provide interpreter licensing and “Registered” or “Conditionally regulatory and education servic- Approved” should be used. As a During the Meeting es for Georgia courts so they can last resort, a telephonic or other  Allow for introductions between ensure the rights of non-English- less qualified interpreter should be the client and interpreter speaking persons. The Commission used.23 To find a qualified inter-  You and the interpreter should has since amended the Interpreter preter in Georgia, please visit the greet the client together Rules, with the Supreme Court “Locate an Interpreter” section  Remember, the interpreter adopting the latest amendments found on the homepage of the works for the attorney in May 2011. Specifically, the May Commission’s website.24  Speak directly to the client in 2011 amendments resulted in the In the March 8, 2012, letter dis- the first person (do not say “Ask following general rule: cussed earlier,25 the DOJ issued the her to tell me . . .”) following statement on the compe-  Do not address the interpreter The following rules apply to all tency of interpreters:  Discuss confidentiality—explain criminal and civil proceedings in to the client that the interpret- Georgia where there are non- It is critically important to ensure er’s presence does not destroy English speaking persons in that interpreters are compe- attorney-client privilege need of interpreters. See also tent and not merely bilingual.  Ensure that everything is Ling v. State, 288 Ga. 299 (702 A bilingual person may inaccu- interpreted SE2d 881) (2010). All other court- rately interpret or roughly inter-  Be clear managed functions, including pret a summary of communica-  Use concise, simple information counters, intake or tions between the court and an sentences filing offices, cashiers, records LEP person, they may have a  Ask one question at a time rooms, sheriff’s offices, proba- conflict of interest, or they may  Avoid using slang or tion and parole offices, alter- even be adverse. Under these jargon

22 Georgia Bar Journal at http://www.americanbar.org/  Explain legal terms in The webinar is approved by ICLE for content/dam/aba/migrated/ plain language one hour of general CLE credit for domviol/pdfs/protecting_  Check for understanding Georgia attorneys. privilege.authcheckdam.pdf. (Nodding from your client 6. See O.C.G.A. § 19-7-5(c) (2012). Jana J. Edmondson is not a guarantee that she 7. See id. § 19-7-5(g). is a bilingual staff understands) 8. INTERPRETER RULES, APP’X A, UNIF. attorney with Georgia R. FOR INTERPRETER PROGRAMS, § VII. During a Hearing/Trial Legal Services 9. DOJ Letter to NC Admin. Office  Follow all of the suggestions Program, Inc., of the Courts, at 3 (Mar. 8, above providing legal 2012), available at http://www.  Attempt to arrive early to the counsel and representation to justice.gov/crt/about/cor/ courtroom to show your cli- individuals in federal and state TitleVI/030812_DOJ_Letter_to_ NC_AOC.pdf. ent where she will stand and administrative forums as well as 10. Id. where the interpreter will prob- courts of law. Edmondson was recognized in 2012 by The Latino 11. INTERPRETER RULES § V. ably be standing 12. Private attorneys volunteering American Who’s Who and in  Ask the judge whether she with the Georgia Legal has a place that she prefers for 2011 as a “Trailblazing Lawyer Services Program may access the interpreter to stand in her for Justice.” Prior to practicing these pleadings by visiting courtroom law, Edmondson worked part- georgiaadvocates.org. time for four years as a 13. See 42 U.S.C. § 2000d (“No person Remember . . . professional interpreter/translator in the shall, on  Using a qualified interpreter (English/Spanish). She is a the ground of race, color, or provides you the opportunity member of several professional national origin, be excluded from participation in, be denied the to focus on the issues and not the organizations including the benefits of, or be subjected to language barrier Georgia Association of Black Women Attorneys where she discrimination under any program  Interpreters and translators or activity receiving Federal currently serves as regional vice interpret/translate ideas, not just financial assistance.”). mere words president, the State Bar of 14. Lau v. Nichols, 414 U.S. 563, 568-  Fluency in a language does not Georgia’s Access to Justice 69 (1974). equal competency in the terms of Committee and the YLD 15. Exec. Order No. 13,166, 65 Fed. art for your field/practice area Executive Council. Edmondson is Reg. 50,121 (Aug. 11, 2000).  Title VI and the Supreme Court a graduate of Mississippi College 16. Ling v. State, 288 Ga. 299, 300-01, of Georgia Rules governing School of Law and Spelman 702 S.E.2d 881, 883 (2010). interpreter use in Georgia College and may be contacted at 17. Id. at 302, 702 S.E.2d at 884. 18. Available at http://www.abanow. require an interpreter, as need- [email protected]. org/2012/01/2012mm113. ed, in all court proceedings— 19. INTERPRETER RULES, App’x A, § II criminal and civil Endnotes (emphasis added).  This includes all “critical phases” 1. Ga. R. of Prof’l Conduct R. 1.4. 20. See O.C.G.A. § 15-6-77(e)(4) (2012). of the entire litigation process 2. Id. R. 1.4(b). 21. Id.  O.C.G.A § 15-6-77(e)(4)—Right 3. See id. R. 1.7(a) & cmt. 11 22. Id. §§ 24-6-652, -654 (2013). (providing additional guidance to interpreter in Title 19 domes- 23. INTERPRETER RULES , App’x B. regarding non-litigation conflicts). tic violence cases 24. GEORGIA COMMISSION ON 4. GA. SUP. CT. R. ON USE OF  O.C.G.A §§ 24-6-652, -654— INTERPRETERS, http:// INTERPRETERS FOR NON-ENGLISH w2.georgiacourts.org/coi (last Right to interpreter for the SPEAKING AND HEARING IMPAIRED hearing-impaired visited Nov. 8, 2012). PERSONS IN GA. [hereinafter 25. See supra text accompanying notes  When an interpreter is working INTERPRETER RULES], APP’X C, 9-10. as an agent of the attorney, the GA. CODE OF RESPONSIBILITY FOR 26. DOJ Letter to NC Admin. Office of presence of the interpreter does INTERPRETERS, STANDARD X, available the Courts, Report of Findings, at not automatically waive the at http://www.georgiacourts.org/ 9 (Mar. 8, 2012), available at http:// attorney-client privilege27 files/INTERPRETERS%20RULES_ www.justice.gov/crt/about/cor/ FINAL_07_03_12.pdf. Before the TitleVI/030812_DOJ_Letter_to_ For more information on work- most recent revisions, effective NC_AOC.pdf. Jan. 13, 2013, the INTERPRETER ing with interpreters, attorneys 27. GEORGIA CODE OF RESPONSIBILITY RULES were called GA. SUP. CT. may also view “Working with FOR INTERPRETERS, Standard R. ON USE OF INTERPRETERS FOR X, available at http://www. Interpreters: An Effective Method NON-ENGLISH SPEAKING PERSONS IN for Providing LEP Advocacy” at georgiacourts.org/files/ GEORGIA. INTERPRETERS%20RULES_ http://media.glsp.org/podcasts/ 5. Protecting Privilege: Using FINAL_07_03_12.pdf. 71-working-with-an-interpreter. Interpreters Responsibly, available

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