13 Nov Breaking Attorney Client Privilege: “Who, Me?”
Breaking Attorney Client Privilege: “Who, Me?”
By: Hilda Shymanik
A few months ago, while working remotely during a bond hearing, I was interpreting in the consecutive mode when the judge asked a Limited English Proficient (LEP) individual if he understood what the judge had explained. As we may all know, litigants are not always able, or capable, socially and culturally speaking to give a seemingly logical answer such as a yes or a no.
Instead, at every opportunity of answering that very simple question, he would go on to answer that he did feel guilty, that he considered himself guilty, and all sorts of alternative answers that included the word guilty.
Every time, the judge repeated the question, as soon as the LEP started speaking in narrative style, his attorney shouted over him to tell him to stop and just answer the question, which caused the attorney’s screen to pop up in the forefront, as the conference call was set up to feature the speaker on the screen.
As the LEP tried to answer the question for about the fifth time, I got the opportunity to interpret before the attorney started shouting because he had momentarily muted his microphone (I could see his mouth moving, but no sound was coming out). What followed was his attorney’s furious shouting at me for interpreting, because according to him, I was violating attorney-client privilege, since his client probably believed that he was speaking to his attorney in confidence rather than to everyone else on the call.
The defendant’s attorney went on to explain that his client had never used or sat in front of a computer before and that this was the first time, that because the counsel’s face was on-screen, sometimes at the forefront or in the back, his client believed he was under the protection of attorney-client privileged communication.
I can imagine that the attorney may have a point, however, warning his client about not saying anything relating to the case at this first hearing was his responsibility. When working remotely, I do not have the opportunity to speak for a few minutes with a defendant before the hearing to inform him that everything he says in Spanish will be repeated for judges and counsel to hear, as I am not involved in how or when they are brought in to court when the hearing is via zoom. I must assume that he already knows that; “But does he?”
I had the chance to consult with a few judges later—not the one in question—and, as we learned from our training, the litmus test is: ‘If the person had spoken in English, everyone would have heard him.’
Of course, the attorney was immediately chastised for trying to pull a fast one, but these things do happen; especially with an LEP person and the level of technical sophistication he had. This is a situation for which no amount of experience prepares you for.
In my opinion, there was nothing for the interpreter to do but interpret unless ordered not to by the one person who could have done that: the judge.
Leave your opinion below and tell me, what would you have done?
Am I guilty as charged?
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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.
You did what you are trained to do whether the attorney liked it or not or understood it or not. We cannot school every attorney on the rules and regulations that we as professional interpreters must live by, any more than I can or you can train an attorney or a judge of what his/her professional responsibilities and duties are. Unfortunately, it continues to be the case that we are the easy scapegoat for when things don’t go their way and the blame is placed at our feet. I am not going to be able to perfectly carry out all my duties perfectly all the time, neither can attorneys or Judges. There must be reasonableness from everyone, and room for error, whether theirs, the client or ours. And lastly, yes, if a Judge is present, I would hope they will be able to make the proper determination, especially that of letting me know if they wish me to be silent or refrain from interpreting certain things. Doesn’t it happen in trial cases where a Judge instructs a jury not to take into consideration something that had just been spoken by someone? An attorney or a witness from the stand? And yet it was heard by all.
Dear Monica,
You make great points. I am not sure the bench and bar have in mind that we are just human as well. Our skill is not a machine, but a breathing living thing.
Please email me at hshymanik@yahoo.con or editor@najit.org if you have interest in being a guest author. You have a voice!
Thanks SO much for sharing this experience and your insight on this particular situation! You’re great, a valued colleague for sure!
Dear Georganne,
It’s always humbling to read your posts. Thank you for always reading our blogs and commenting. You are a faithful reader and we all appreciate you!
Great situation to consider. We all benefit from others’ experiences because they give us the opportunity to consider our own response to a situation before we are in the hot seat!
Hilarious
Oh, yes, I have had similar experiences with simultaneous translation, both in the legal arena and in conference interpreting. I would have behaved exactly as you did, following the rules we were all given during our training. In the past, interpreting and, indeed, translation activities were very rarely used. In the past few decades, these professions have been used much more frequently, but what has not happened is educating those we serve about the rules we must follow as demanded by our profession. In the case of legal cases, I have often felt that the professionals involved do not consider us to be the educated professionals that we are. Often, they believe that we learned a couple of languages as children, and now we are using that skill to provide interpretation. Lack of respect for our service is rampant. What we all need is greater awareness of what it takes to become an interpreter and the rules we must follow as such. How this will happen, I don’t know, but hopefully the increase in the demand for interpreting will spawn more awareness and respect.
Dear Margaret,
I agree with you. Working and networking with other interpreters is the best training “program” we can possibly have. I just worked a trial with Liesl Monroy, another with Christina Green a couple of days ago, with Rosy Varco a few months ago, with Maricela Cortez around the same time and I have learned from each of them, terminology, technique, the latest in the profession, just to name a few.
Thanks for reading TNO!
It can be…afterwards, of course. But knowing that you are doing the right think keeps me from panicking. I feel quite capable of defending my actions when it comes to our profession. Not so much when facing family Thanksgiving misunderstandings. 🙂 And it’s coming!