Attention interpreters: Butcher or Surgeon?
October 5, 2015 § 2 Comments
For many years I have devoted a considerable part of my time and efforts to promote, develop, and defend the professionalization of our interpreting services. There have been many times when I have been left with no other choice but to fight against the usual forces that tend to diminish, manipulate, and erode our profession: Greedy agencies who want to hire anybody, regardless of skill, knowledge or qualification, if this move will translate into a greater profit; Ignorant clients who cannot see the difference between speaking a foreign language, and actually interpreting to and from it; Self-serving bureaucrats who care about nothing other than their petty jobs and the opinion of their superiors within their sad organization; and mediocre “wanna-be” interpreters who constantly try to lower standards and expectations in order to fit in the ocean of cynicism and falsehood where they swim portraying themselves as professional and apt individuals, disregarding the nefarious consequences that their devastating services will undoubtedly cause those for whom they “interpret”.
Interpreting is the oldest bilingual profession on earth, but its modern version is relatively new all over the world. Because of historical and empirical reasons, some fields of interpretation have developed faster than others, and for the same reasons they are better regulated, known, and respected by both individuals in the field of communication, and the population at large. In some parts of the world interpreting services have been part of the legal process for centuries, and due to current tendencies, globalization and commercial relations among all nations, their services are among the better-known and more strictly regulated interpreting services.
In the United States, Europe, and many Latin American countries, oral adversarial legal proceedings and intense trade have produced the certified, licensed, qualified interpreter who has passed through some knowledge and skill assessment process, and complied with legal, ethical, and professional requirements. Many of them have the benefit of a formal professional education as interpreters, attorneys, or other law-related fields which allow them to learn and understand highly sophisticated concepts and the complexity of the legal process. Because of the subject matter they have to work with, the magnitude of the consequences of those acts and proceedings they participate in as interpreters, and the legally established and sanctioned certification process to be able to work, these individuals are considered by the legislation not only professional service providers, but professionals of a specialized discipline: These interpreters practice legal interpreting.
It is important to keep in mind that not all legislation and systems are at the same developmental level, and even the most evolved ones are far from satisfactory; they do not cover all scenarios or proceedings yet, but they constitute a series of steps in the right direction, and reflect the efforts of hundreds of interpreters, legal experts, administrators, activists, and others who have fought very hard to get to the place where we find ourselves now.
In the United States, interpreting services in a legal proceeding are constitutionally required in all criminal cases, and thanks to the Civil Rights Act, they are mandated in all other proceedings where the federal government is financially involved. There are currently several states that have also incorporated this essential service into their own legislation.
The nature of the services rendered by the interpreter in a legal context are professional as they are linked to the practice of the law by attorneys, judges and other officers of the court. Attorneys cannot practice law without a license, patent, or certification that allows them to present themselves as lawyers, and provide legal services such as advice and representation to their clients. Judges have to meet many requirements to be able to do their jobs as well. There is no doubt that it is for this reason that legal interpreters are required to be certified. Just as the attorneys, in the United States an interpreter can be certified at the state or at the federal level.
Attorneys, judges, and their interpreters deal with matters that can impact the life, freedom, pocket, or reputation of an individual. This makes them a very special group: They are subject to rules and canons no other professionals have to observe. It is so important, that nobody can practice law without first been admitted to the bar, (http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf) and those who violate the law are subject to penalties that can go from a fine to the loss of freedom. It is a crime to practice law without a license (http://apps.americanbar.org/publicserv/immigration/notario/california.pdf). In the United States, with some exceptions that we are working to eliminate, court interpreters must have a certification or license to be able to provide their services in court when interpreting to or from a language that is part of that state’s certification program. Dear colleagues, this is extremely important, because it is an essential step in our road to full professionalization and recognition of the profession.
Court interpreter certification programs and legislation have a long, long way to go, but so far we have been moving in the right direction.
As an attorney, when I used to practice law, there were few things that bothered me more than to find out that a non-lawyer was practicing without a license and hurting people. These individuals exist. They are out there, preying on the most vulnerable communities, among them, those who cannot speak the language of the country where they live. There have been many cases of “notarios” busted for practicing immigration law without a law license. I applaud the efforts of the attorney bars and government agencies who are constantly looking for these predators.
I have not practiced law for a long time, and during all these years I have felt the same way every time I see someone who is not certified to interpret in a legal setting. Unfortunately, the response from professional associations and government authorities has not always been the same as in the case of “wanna-be attorneys”, but there has been progress.
That is why it really bothers me that some are trying to undermine this quest towards professionalization by diminishing the importance of the practice of legal interpreting and by proposing solutions that do not match the legal system philosophy nor satisfy the needs of the parties involved in a legal dispute. Individuals moved by greed, ambition, or perhaps mere lack of knowledge of the practice of the law have suggested, and are trying to implement, the notion that “not all legal interpreting requires of a certified court interpreter”. They have erroneously concluded that Article 1 courts do not need of the services of a certified court interpreter, and that many legal acts that involve attorneys and legal advice should be left to community interpreters who will have a different set of skills and a lack of knowledge of substantive and adjective law, including the rules of evidence. In other words: instead of joining in our struggle to achieve excellency in all fields of legal interpreting by preparing, training, and certifying as many court interpreters as necessary, they have decided to set back our fight for professionalization by arguing that less-prepared interpreters will meet the requirements to practice in legal settings that are outside Article 3 courthouses. They are playing a very dangerous game. Let me explain:
Currently in the United States only court proceedings before an Article 3 court are required to use the services of a certified court interpreter (if certification into that language is available) Article 3 courts are those that are part of the judicial branch or a government (federal or state). Unfortunately, as of today, Article 1 court proceedings do not require the services of a certified court interpreter (if certification into that language is available) at the federal level and in many states. Article 1 courts are those that are created not by the federal or state constitution, but by congress or a state legislature and are part of the executive branch of government (usually with a degree of independence). They are commonly known as “Administrative Courts”. Some examples would include, at the federal level, Social Security Hearings and Immigration Courts (EOIR) and at the state level, the most common administrative courts are Worker’s Compensation Courts. Articles 1 and 3 refer to the articles of the U.S. constitution.
Those in favor of de-professionalization of court interpreting by lowering the requirements needed to work in a legal setting argue that certification only exists for “court interpreting” and not for “legal interpreting” and that administrative courts are less formal than Article 3 courts. For this reason, certified court interpreters should not be necessary. They also argue that many of the services provided by an attorney are more “community interpreter-related”, making community interpreters better equipped to assist the attorney’s client, as they are more apt to provide feedback to the attorney about cultural nuances than a court interpreter who is very rigid and strict due to the formal court setting training they receive. This is scary and far from the truth.
The first argument that administrative hearings are less formal than a hearing before an Article 3 judge are nonsense. It is true that the proceedings are more relaxed and not as rigorous in an administrative courtroom, but the rules of proceeding and evidence still apply. Attorneys and judges still argue the law, and legal theories are presented with pro and con arguments by the litigants. Because of the complexity of all of this, and because of the importance of what is being decided, all those lawyers appearing before an administrative judge have to be admitted to practice law in the jurisdiction where they are providing their services. A law student who does not pass the state bar is as barred from practicing law in an administrative court as he or she is in any court of the judicial branch of the government. Administrative judges are also attorneys and receive special training to be judges. Both, attorneys and judges are professionals; we are professionals too. Only certified court interpreters should be allowed to practice in administrative hearings. The complexity and sophistication of the issues before the court require of a professional specifically trained in the legal field to interpret. Nothing less in acceptable. How can somebody interpret something he or she does not understand?
The second most common argument is that current legislation does not require of a certified court interpreter for those legal services that happen outside the courthouse. It is true that the current law is not clear in this regard, but that does not eliminate the need for a competent specialist who is familiar with the law and procedure. The law clearly states that all services performed by an attorney that involve legal advice or practice must be provided by an individual authorized to practice law in the given jurisdiction. Why is the law requiring a licensed attorney to discuss the case with a client, prepare a witness, or conduct a deposition? Because of the highly sophisticated concepts and terminology that will be used during the meeting. Only a certified court interpreter who knows and understands these topics can successfully and safely assist the attorney during these activities. Performing any of the above or similar acts by an individual not admitted to practice law in the jurisdiction is considered unauthorized practice of the law, and that is a crime. For the same reasons, a certified court interpreter should be used at all times. To the argument that certified court interpreters are not prepared to be cultural brokers or advisors to the attorney in these settings because their training has been too formal and strict, all I can say is that, without putting anybody down, it is very likely that the certified court interpreter will do a better job at bridging this gap between the attorney and his client (not the interpreter’s) because they are usually more experienced and better interpreters than most community interpreters. Moreover, they will also detect cultural hurdles in the legal context that a community interpreter will not be able to notice because of his or her lack of legal knowledge and experience. To affirm that certified court interpreters will not know how to act and assist the attorney they are working for is plain ignorance. Certified court interpreters know the difference between working as interpreters for the courts where they have to be impartial, and working for an attorney or law office where they are part of the defense, prosecutorial, or plaintiff’s team. Add to that the fact that they will know the reach and exceptions to the client-attorney privilege in these settings, and the community interpreter will not, or at least will not understand well enough, even if they were just enounced during his training.
There are other paralegal situations and scenarios where a community interpreter can be used without jeopardizing a legal case. Communications about logistics, social worker appointments, payment plans with the law office, and many others. The golden rule is that when the attorney’s professional service involves a court appearance (any court) an act with potential evidentiary effects (such as a police interview, a law office interview or preparation of a witness) or any occasion where the attorney will provide legal advice or practice law (such as a legal opinion in person or over the phone, or filling up a legal form) the attorney should always be assisted by a certified court interpreter (qualified or licensed depending on applicable legislation) The potential consequences and legal liability of ignoring this rule are enormous as they could impact the life, freedom, assets, or reputation of an individual or a company. When people retain an attorney they expect to see an attorney, they also expect to find a certified court interpreter by his or her side. When you are going to have an operation you want to see a surgeon, not a butcher.
Finally, the argument that the certification is only for “court” interpreting and not for “legal” interpreting, very popular among those who want to de-professionalize court interpreting, can easily be dealt with by remembering that our profession is a work in progress. There is much that we have accomplished in the legal interpreting arena, but there is more to be achieved, among other things, the expansion of certification programs to include testing of civil and administrative procedure. But even without these changes, certified court interpreters are constantly learning and training in all these fields through the continuing education requirements that are in place at the state level, and because of the professional market needs. Attorneys do not graduate from law school knowing all fields of practice, they graduate knowing where to find what they need so they can learn and understand it applying the legal thinking process they learned in school. It is the same thing with certified court interpreters. As far as the words “court” and “legal” it is probably a better choice to refer to these professionals as certified legal interpreters, but that is just semantics.
Dear friends and colleagues, there is a long way to go, but much has been accomplished in the legal interpreting field. Our efforts should focus on elevating the quality of the profession, not diminishing it. There will always be those who oppose our professionalization, but let them be from outside the profession, not from within. We have to work together to increase the number of interpreters with academic background until it becomes the rule and not the exception; we should continue to encourage other professionals like lawyers, physicians, scientists, and others to join our profession when apt and qualified; we need to strengthen the quality of the certification programs, ideally taking them away from the government just like the attorneys’ bars; and we must demand more and better continuing education programs.
This is the only way to professionalization, full recognition and respect that will ultimately translate into a higher quality service for those in the justice system, and will produce a better income for our colleagues. I ask you to oppose the lowering of the standards and the de-professionalization of court interpreting by sharing this information with your colleagues, attorneys, attorney bars, judges, community activists, and anyone else who may help us defend our profession. I also think that professional associations such as the National Association of Judiciary Interpreters and Translators (NAJIT) in the United States should prepare a position paper in this very important issue. Professional associations are there to protect their members and the profession. I now ask you to share your comments and opinions regarding this crucial issue that threatens our profession at this time.
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