15 Jul Saved by the Bell
Many times, I am saved by the bell. Last week I was in court, on time waiting for my early morning case to start. As we waited over 90 minutes, the ADA, judge, sheriff’s officers, clerks, and LEP defendant were understandably frustrated. The practice in that courthouse is to call in advance to find out if the case is ready to be heard. I usually do not call because it feels a bit pedantic to imply “I am too important to go to wait like everyone else”. And yes, I know my skills as an interpreter are unique, but I do not believe it creates good feelings among colleagues if you are the one person who must be called in when everyone is ready. All courthouses are different, but in this one in particular, I normally know someone, and because I go regularly, I choose to manage things in this way.
In this instance, I regretted not calling because 90 minutes is enough time to:
1. Review a lesson (the eternal study/practice we all must deal with, to keep our bilingual level)
2. Write a blog
3. Organize my study materials, or
4. Send pending invoices or
5. Pay bills
By the time counsel for the defendant arrived, cases were being continued and rescheduled to make room for the trial after our plea. Now that the defendant’s attorney had arrived, he had to review the plea agreement forms with his client with my assistance. We had not finished the first form when they came for us. Counsel said we needed three minutes. With his experience and mine, we knew that was not about to happen. The more he tried to rush me through it, the more I needed repetitions, and the more we delayed. I must emphasize that I was not purposely delaying the interpretation. It was just that I was not about to skip anything in those forms because that was my responsibility.
SIGN, SIGN, SIGN!
When we were called in for the last time and the judge denied us more time, the attorney just said, sign here, repeatedly, and we went inside the courtroom.
Right before we started reviewing the forms with the judge, it became clear that the agreement was floundering because the ADA wanted the defense to stipulate to imposing restitution, and the plea fell apart.
I thanked the forces that be for not being put in a situation where I was asked anything about the reading/interpreting of the forms. These are the scenarios that came to mind:
A) What if the judge had asked the plaintiff if the attorney had reviewed the forms with LEP with the help of the interpreter?
Since the judge is not asking me, I do not believe that I have an obligation to contradict the LEP or attorney since I am not speaking for myself, however, it is one of those tricky things that I would not feel comfortable doing since there is some ambiguity to the situation.
B) What If the judge had specifically asked if they had reviewed the form with the assistance of Ms. Shymanik? Then what?
If the judge is not addressing me, do I have a responsibility to clarify that I did not interpret all the forms to the defendant? I am not 100% sure.
C) What If the judge had specifically asked the interpreter after seeing the look of confusion or indecision on the LEP’s face?
I cannot answer that question without violating the code of ethics as that interlude is covered by attorney-client privilege, correct?
A CONFUSING MATTER OF ETHICS
I went to my coordinator, and she was not sure either. She suggested I go to the person in charge of the certification program, but I thought it would make for an interesting blog post.
I know that if a crime is not being committed in my presence, and I am not talking about perjury, as we witness some form of those on occasion, but a crime of a violent nature, there is nothing for me to do. As I understand it, unless my client is talking about a plan to kill or harm someone, I am not supposed to intervene. So, my position would be that I would not reveal under any circumstances that the forms had not been read/sight translated/interpreted for the client, because that would be breaking attorney-client privilege.
Please share with me what you think.
Hilda Zavala-Shymanik is a state certified/approved Spanish court interpreter and translator with more than seventeen years of experience in legal, medical, corporate, and non-profit settings in New York, New Jersey, Illinois, and Wisconsin and is certified/approved in those four states. Hilda is a former Vice Chair, Board Member, Treasurer, Conference Committee Chair, member of the Training and Education and Advocacy Committees, and current member of the blog team and Chair of the Elections Committee of the National Association of Judiciary Interpreters and Translators, as well as former president of the New York Circle of Translators.
She is an active and voting member of NAJIT, ATA, MATI and other professional groups. Hilda has two certificates in Legal Interpreting in Spanish and English, the latest one from NYU. Hilda is the current staff interpreter of the 23rd Illinois Judicial Circuit as well as a Cook County (Illinois) Spanish Interpreter employee. Hilda is a former Staff Interpreter at Essex County Superior Court in New Jersey, where she worked for six years. Born in Chicago, Hilda lived for twenty years in Mexico and loves traveling. She continuously looks for opportunities to promote and advance the interpreting profession. Contact: hshymanik@yahoo.com
I agree that this type of situation is very common. Even when the attorney reads the information from the guilty plea colloquy to his/her client, the client tends to say yes to everything and put their initials where told to initial and to sign where told to sign without really understanding what they have been read.. Unfortunately, the plea colloquy is not often understood by MANY defendants, whether English is their first language or not. The attorneys need to realize this and take the time and patience to explain the documents to their clients when they see a look of bewilderment on their faces. Even when the attorney does go over the documents without making sure his/her client really understands them, they often are bewildered when they appear before the judge and then the judge takes the time to explain things again. I have seen judges do this many times to avoid missing the opportunity to finalize the guilty plea. As an interpreter, I just sincerely hope the attorney and judge will sort this out and I simply interpret what is being said by each party, unless I am specifically asked something. I work with some fabulous judges who have actually asked me if I believe defendant has understood everything, after they have asked the defendant questions about the contents of the plea colloquy and received nonsensical responses or responses that Indicate misunderstanding, especially when the defendant has indicated a lack of formal schooling on the guilty plea colloquy. If the defendant has given responses in Spanish that indicate a complete lack of understanding, I tell the judge that, based on the defendant’s responses, I believe he had difficulty understanding the contents, the judge asks clarifying questions or explains things again.
Thank you Leslie. I have to agree with you. Judges, and I can categorically say that every single one I have worked with, do a better job of explaining the plea, than the defendant’s attorneys do. I am always grateful for that.
With regard to A) I probably would ask to address the court and if granted inform the court that I had not completed the interpretation of the forms.
With regard to B) discard “probably” . I would tell the court that interpretation of the forms was not completed..
in case of C) II most certainly tell the court because it is a direct question to me..
Actually, I would have refused to follow the attorney’s order to sign the form until after completing the interpretation of all of it.
By the way, many Attorney’s use an uncertified interpreter for office appointments where the uncertified Interpreter signs the form.
The forms in my jurisdiction and State clearly states on the form that the interpreter has to have an oath on file. That is reserved for certified, registered or Court appointed interpreters with the oath administered in each case in court..
When I find out that the interpreter that signed the form is uncertified or not registered I either inform the attorney OR in case of a brushoff inform the Interpreter coordinator and explain why I refuse assignments with that attorney.. It works. But this situation is recurrent in many jurisdictions.
Hello Carlos. I have never signed any forms myself, so far. It is not a requirement in the dozens of places I have worked. The instructions for signatures were for the defendant. I would never have signed such a form stating I had sight-translated or interpreted a form unless I had. Thank you for your reply.
Interesting question, Hilda. We are weighing attorney-client privilege vs the truth. I am not a court interpreter, and I do not know what I would have done either.
My questions are, by group, 1. what is my responsibility to the plaintiff? Is he the one paying the bill? Does that have an impact in this situation? 2. where does client/layer privilege comes into play in a lie that may create a professional problem for me if the judge believes I failed to do my job properly? 3. am I really obligated to lie? I know that there are times when interpreters interrupt the process by asking for clarification, couldn’t that be done here?
Wow. It is complicated!!
Hello Gio. Janis has written extensively about this in a blog and every person I am interpreting for is my client. My responsibility is to be accurate, regardless of who is paying. Janis replied to other questions. It is very complicated! 🙂
Interesting post, thank you for sharing. As far as waiting in the courtroom for my case, I am not at all inconvenienced by it, as I will be paid for that time, either as staff interpreter or a freelancer. I prefer to be ready and where I need to be as opposed to have court staff call me upon the start of proceedings. As staff, you can certainly use tools such as email, text msg with bailiffs or clerks in order to use your waiting time more efficiently and return to your office or other courtrooms in the meantime, as long as the judge(s) are ok with that. When I used to work full-time, I brought the Interpreters Companion dictionary or other materials and would read while waiting. Regarding your question about clarifying anything to the judge, unless asked directly by the judge, which I have never experienced in 26 years as a staff interpreter and not since as an occasional freelancer, this may not happen as the attorney has the duty to make sure his client understands. We used to have several staff judges who would ask the defendant if s/he understood the interpreter and I thought that was a great tool to ensure the defendant/party understood what was going on. Many times I witnessed that items were not thoroughly explained to the party and pleas or other types of hearings would fall apart or go forward. While this is very irritating, it is not the interpreter’s job to go tell the judge that something was not explained sufficiently. So I am with you on not divulging things that happened between attorney and client that was or was not interpreted or reviewed. That duty lies with counsel and goes to effective or ineffective assistance.
Hello Sabine,
It is interesting how different courts function. I have been in many courtrooms where judges ask defendants if the interpreter read them the indictment. In many others, they have asked them if they understand everything that has been explained to them, or if they understand what is happening, and a few that ask if the defendant understands the interpreter. I have even been asked if the defendant understands! A judge regularly asks me directly. What I do is ask the judge or commissioner to address the question to the LEP. Another colleague has got in trouble for answering exactly that so it is good to have a good rapport with judges and so they understand that you are acting in good faith and not being defiant. We have a complex job!
Hello Hilda,
I am sorry you were in such awkward position. I guess that many of us, interpreters, have asked ourselves that question before. What should I do? I was told in an ethics course to do exactly what you did. Keep it to yourself because it has to do with attorney-client privilege. Unless, of course, it is gross negligence, or a crime. So, I guess you did the right thing, though I can understand if you did not feel good or comfortable about the situation. I would have felt that way. In the future, I hope the attorney asks you to read the forms with sufficient time, especially if the hearing is delayed, so the LEP is well informed about everything. The attorney also has his/her professional obligation to properly assist his/her client.
Dear Hilda and blog readers: I must start my comment to this very interesting blog by addressing your last statement, “my position would be…” Attorney-client privilege has to do with what is discussed between the client and his legal counsel as it specifically pertains to the client’ case. If they start to talk about a baseball game they both watched, there is no attorney-client privilege there. I would say there is no attorney-client privilege concerning whether or not the plea forms were read and translated to the client. A judge would never ask what a defendant discussed with his lawyer, and yet they always ask during guilty pleas: did your lawyer explain these to you in [whatever language the defendant speaks.] So now, back to question A. If the judge is addressing his question to the defendant or the attorney and they answer something you know not to be true, it is not up to you to speak up (and, therefore, abandon your role as interpreter and become a witness.) Same answer to question B. Now, if the judge had asked you, the interpreter, about what you did or did not do, then you have to answer honestly. Rule of thumb: if the judge asks, that’s because there is no attorney-client privilege. If there were, s/he would not ask.
Thank you, Janis! I just had an attorney claim that, but that is a matter for my next blog. I appreciate your knowledge and insight.
Would you happen to have a comment on Michelle’s scenario below? Will that change your answer?
I suppose it would be different if the judge asked you if the attorney went over everything on the form with the defendant. Then I believe privilege would come into play. I’ll be interested in seeing what others think.
Thank you.
I understood privilege to cover what the attorney and client said to one another while you were interpreting, not what you did or did not do. If the Judge asks the interpreter, “Did you translate this entire document to the defendant?” Would it be breaking privilege to say, “no”? You are not revealing what the attorney and their client said to one another by honestly answering that. Right? I suppose it would be different if the judge asked you if the attorney went over everything on the form with the defendant. Then I believe privilege would come into play. I’ll be interested in seeing what others think.
Thank you.
Thank you, Michelle. I just posed a question to Janis, because I tend to think as you, but I defer to someone with more experience.
Hi Hilda and Michelle: I don’t see that Michelle and I disagree at all. My only “hint” to know if something is privileged or not is that IF IT WERE PRIVILEGED the judge would know better than to ask. If the judge addresses you directly with a question about the attorney for whom you just interpreted, you can rest assured it is not privileged.
As an officer of the court, it is my duty to inform the parties that my role as an interpreter was compromised, resulting in incomplete work. Please note that there is no attorney-client privilege when I am hired by the court and the proceedings are held within the court.
That is an interesting perspective. It makes sense but I find it difficult to believe that could be my role. The courts where I work do not have the time to address such an issue. But to be honest I hope you are right. If you are correct, it would change the way I feel about my job every day. I feel, almost every day that my work is compromised by the rush with which most attorneys rush their clients through plea agreements. In serious crimes as well as misdemeanors.