All About Estates

Lost in Translation: Clients Who Do Not Speak English

Canada is one of the most culturally diverse countries in the world. Ontario is amongst its most diverse provinces. As globalization continues, Ontario’s lawyers will undoubtedly encounter a continued increase in client diversity. What are a lawyer’s responsibilities when faced with potential clients who do not speak either of Canada’s official languages? How should civil litigators deal with potential clients who want to move forward with establishing a relationship despite a language gap?

 

The Relevant Authorities

Rule 3.2-2 of the Law Society of Ontario’s Rules of Professional Conduct governs a lawyer’s responsibilities regarding language rights. Rule 3.2-2 is part of Rule 3.2 on Quality of Service, and relates to Rule 3.1 on Competence. This is because the ability to provide legal services in the language of the client’s choice has a direct impact on that lawyer’s competence to handle a specific matter, and the quality of service they can provide.

Rule 3.2-2 A states:

A lawyer shall, when appropriate, advise a client of the client’s language rights, including the right to use.

(i) the official language of the client’s choice; and

(ii) a language recognized in provincial or territorial legislation as a language in which a matter may be pursued, including, where applicable, aboriginal languages.

Rule 3.2-2 B states:

If a client proposes to use a language of his or her choice, and the lawyer is not competent in that language to provide the required services, the lawyer shall not undertake the matter unless he or she is otherwise able to competently provide those services and the client consents in writing.

Additionally, in certain specific circumstances, a client’s right to have legal services and procedural steps conducted in a language of their choice is guaranteed by both section 19(1) of the Canadian Charter of Rights and Freedoms, and Part XVII of the Criminal Code.

Section 19(1) guarantees the right of any person to use Canada’s two official languages, English or French, in any pleadings or processes before any courts which are established by Parliament. Section XVII of the Criminal Code sets out the right for an accused to be tried in either of Canada’s official languages, and the right for an accused to apply for a trial to be conducted in a language of their choice.

 

Best Practices on Language Rights in Civil Litigation

In the realm of civil litigation, the choice of language in receiving legal services belongs to the client, not the lawyer. Commentaries to the above rules suggest that as a best practice, lawyers should advise clients of their right as soon as possible, which might mean at an initial consultation.

Where a lawyer does not speak their potential client’s preferred language, they must carefully consider where it is still possible for them to render those services in a competent manner. In these situations, our law society sets out three factors for consideration:

  1. Does the lawyer have sufficient knowledge of the desired language?
  2. Does the lawyer have sufficient knowledge of the legal terminology of the desired language?
  3. Can the lawyer effectively communicate with the client in the desired language?

If the answer to the above are no, the best practice is to refer the client to a lawyer who is competent in that language. However, sometimes this may not be desirable nor possible. The relevant practice area may be highly specialized, or the language itself may be uncommonly used. Sometimes, a lawyer who is competent in the desired language may not exist.

In rare situations, lawyers who do not speak a client’s desired language may still move forward with establishing a lawyer-client relationship. Two requirements must be met. First, the lawyer must obtain the client’s written consent to act despite the language gap. Second, the lawyer must become capable of competently providing the desired services. For capable polyglots, this could mean mastering the language within a short period of time. For the rest of us, it is best practice to obtain instructions to consult or collaborate with another lawyer or paralegal who is competent in that language.

About Tyler Lin
Tyler Lin completed his articles at de VRIES LITIGATION LLP. His practice focuses on estate, trust and capacity litigation.

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