Is it true that interpreters must abstain from public commentary?

Dear Colleagues:

I have recently read many comments about the court interpreter in California who decided to talk to the media after she provided her services to the defendant in a high profile criminal case. To my surprise, must comments promptly endorsed the position that a court interpreter cannot make any public comment. Such extreme “black and white opinion” is quite concerning.

Before expressing such a sweeping opinion, interpreters should reflect on the purpose of their professional service, the reasons for the rule or legislation, and what the consequences of failing to observe it really are. Let’s see:

The main topic concerning this analysis is confidentiality. The nature of the duty of confidentiality is based on two things: the subject matter or area of interpretation, and a scale of values.

Different subject matters or fields of interpreting will be governed by different legislation, interests, and goals. If the interpreter’s professional practice involves intellectual property, diplomacy, or national security, there will be many limitations and restrictions as to the things the interpreter can share with others. Most of these duties will come from legislation, not canons of ethics of regulations. Many others will derive from contractual obligations regarding commercial brands, patents and copyrights.

The scale of values is also important: The more important the value, the stricter the responsibility.

Revealing the content of diplomatic negotiations could have implications of war and peace, and the interpreter could even go to prison, or at least lose his job and reputation.

Revealing medical information can disrupt a patient’s health or treatment, impact insurance coverage, kill a patient’s future employment opportunities, and generate legal problems for hospitals, physicians and interpreters.

When we provide diplomatic or military interpreting services at certain level, we are required to undergo a security clearance process and we take a legally binding oath to secrecy. Breaching this legal obligation will bring catastrophic consequences to the interpreter.

The California case gives us the opportunity to revisit a court interpreter’s duty of confidentiality, so we can see how sweeping statements like those made by some of our colleagues last week, most of them in good faith, are not so categorically right.

First, we need to understand what is protected by the duty of confidentiality, and who imposes the restrictions on the court interpreter.

Interpreters exist because there must be equal access to the administration of justice, regardless of the language the court or the parties to a controversy speak. Here we must make a distinction:

(1) The court interpreter as a communication tool to the litigant.
When a plaintiff, defendant or victim cannot actively participate in their legal case because of a language barrier, the court interpreter acts as the ears and voice of the foreign language speaker in communications with the court, his attorneys, and the opposite party. Interpreters render a complete, accurate interpretation of everything that is said during the hearing, and interpret to the court and parties everything the foreign language speaker says. These interpreters handle three types of information: public record, confidential information, and privileged communications.

These are the interpreters hired by the court, paid from the courthouse budget, and selected from a roster kept by the clerk’s office.

When a plaintiff or defendant want to be represented by a private attorney, but they cannot communicate with their attorneys because of a language barrier, those privately retained attorneys can also hire professionals court interpreters in private practice to help them communicate with their foreign speaking client, their client’s relatives, and with those witnesses who do not speak the language of the attorneys. In this case it is the attorney who selects the interpreters from prior experiences or referrals from others; and it is the attorney, not the court, who pays the interpreters’ fees (very likely from the plaintiff or defendant’s assets). This interpreters handle three types of information: public record, confidential information, and privileged communications.

As we can see, in both cases, interpreters work with information that is public record. This means that everybody has access to what was said or done. For example: As a rule, court hearings are open to the public. Anybody can go to the courthouse and sit in the courtroom during a trial. At the State-level, many jurisdictions broadcast their proceedings in public and even commercial TV. All legal arguments, court rulings, and witness statements are heard by all interested individuals.

Both, court appointed and privately retained interpreters are privy to confidential information not because of who the interpreters are as individuals, buy because of what they do for living. This information is sensitive in nature and if disclosed, it could adversely impact third party innocent individuals. For these reasons, interpreters are usually barred from sharing this information. Details surrounding a case that come to the knowledge of the parties, but are irrelevant to the outcome of the controversy are kept from the public. Names of business partners, financial information, paternity, personal health information, sealed court cases, juvenile court records, are just some of the examples that fall under this category.

While working with an attorney, all interpreters learn what is called privileged information. This is crucial, intimate information about the subject matter of the controversy that lawyers need to know to represent their clients and defend their interests. This information is treated differently because it is only when a person knows that statements made to their attorney in confidence cannot be disclosed to anyone, not even the judge or jury in the case, that clients can truly open up to their attorneys and share all details of a case. Those acting as agents of the attorney, such as paralegals, investigators, and interpreters, are covered by the client-attorney privilege, and nobody, not even a judge can compel them to disclose said privileged information.

(2) The court interpreter as auxiliary agent to the administration of justice.
The court system has a vested interest on the perception that the administration of justice within its jurisdiction is equally fair to all citizens, even those who do not speak the language of the court. For this reason, courts have set policy to clarify this principle, and reassure all potential litigants of the impartiality of the court, even in those cases when a foreigner is party to a controversy, especially in criminal cases where life or liberty are at stake.

This principle has motivated some courts (not all of them), in particular in the United States, to go beyond what many would consider reasonable, and impose the strictest restrictions to some of the things court interpreters can and cannot do. Based on this one-sided extremely restrictive rules, the federal courts of the United States abide by the United States District Court Code of Ethics for court interpreters, who have been sworn as officers of the court for the duration of the assignment, and interpret under contract with such court, “…to follow the Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts…” (USDC Code of Ethics. Preamble)

The Federal Code of Ethics contains some important principles needed to practice the court interpreter profession that are free of controversy, such as Rule 5: “Confidentiality. Interpreters shall protect the confidentiality of all privileged and other confidential information…”

It also covers other situations where restrictions seem unreasonable and arbitrary, like Rule 3 where it states that: “…During the course of the proceedings, interpreters shall not converse with parties, witnesses, …attorneys, or with friends and relatives of the party, except in the discharge of their official functions…”, or Rule 6: “Restriction of Public Comment. Interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential…”

Dear friends and colleagues, we must remember that the above restrictions by the United States District Court Code of Ethics only apply to court interpreters who are providing their professional services when they “…are sworn in (and) they become, for the duration of the assignment, officers of the court with the specific duty and responsibility of interpreting between English and the language specified. …In their capacity as officers of the court, contract court interpreters are expected to follow the standards for performance and professional responsibility for contract court interpreters in the federal courts…”

In other words, said restrictions, as they are not the law, but a mere contractual obligation, only apply to those who are providing their services in federal court pursuant to a contract with the court. These blanket restrictions do not apply to any of us when working as interpreters in federal court if we have been retained by one of the parties.

Once we understand this limitation, and the different role interpreters play when they act as a communication tool to the litigant with his attorneys, and in those cases when they also act as an auxiliary arm to the administration of justice and are paid by their judiciary. It is obvious that legal restrictions and limitations such as client-attorney privilege and confidentiality will apply to all interpreters as they are part of the essence of the legal representation, but other limitations that go beyond that scope will not apply to privately retained interpreters as they exist to assure impartiality and transparency to the extreme. This is not necessary with private attorneys and their interpreters as they are publicly known as part of a team: plaintiff’s or defendant’s.

To the latter group of interpreters, sharing what is already public record should be no problem; and in my personal opinion, I do not believe that even court appointed interpreters should be sanctioned for sharing public information with the media. I believe that telling a reporter that a hearing was moved from 1 pm to 2 pm and saving her the trouble to go up 20 stories to read the same information on the court’s bulletin board will hardly raise suspicion of prejudice, particularity when we know that interpreting is a fiduciary profession. To me, it looks very weird when the interpreter refuses to answer such silly questions and reacts by moving away without an explanation.

As far as confidential information, please be aware that the prohibition is not absolute either. A court order can compel you to testify. Please remember that the client holds the right to said confidentiality, and as such, he or she can always give consent. When this happens, confidentiality goes away. Will these ever happen in your professional career? We do not know, but we should always be aware that it is a possibility.

Even client-attorney privilege is not absolute. There are certain exceptions in the law that allow you to pierce the veil of this sacrosanct privilege. Among other possibilities, the client, who holds the privilege, can also lift it by giving consent; you can also pierce it when defending yourself from the actions of the client who holds said privilege. Let’s say that the client sues you arguing that the interpreter did nothing in the case. Under those circumstances you can pierce the privilege to prove that the client is not telling the truth and show the work you did, as long as the privileged information you divulged is limited and tailored to the point you are trying to prove in court. Statements and information provided during a client-attorney communication that include future illegal activity is not covered by the privilege either, and you as interpreter must disclose it to the authorities.

We must remember at all times that different jurisdictions will have different policy, rules and legislation, so we must adhere to all applicable rules, as long as they apply to us, depending on the type of professional service we are going to provide.

In the case of California, please keep all of the above in mind, and understand that Rule 2.890(c)(4) states that: “…An interpreter must not make statements to any person about the merits of the case until the litigation has concluded…”

Notice how the rule does not go beyond the conclusion of the case, because the rule (erroneously in my opinion) does not make a distinction between interpreters privately retained by the parties who act as a communication tool to the litigant, and those retained by the courts who also must play the role of auxiliary agents to the administration of justice and therefore be impartial at all times. Once there are no more appeals, there is no reason for the restriction on the first type of interpreter.

Finally, a couple of thoughts: I was saddened to see how must of my colleagues immediately assume the role of a criminal court interpreter retained by the court. I am always hoping that more interpreters view themselves as independent professionals working with private attorneys. There is an abysmal difference in professional fees, and the work is about the same. I ask you to please think like a private practitioner, instead of accepting the rules without any reservation. Question the rules and try to understand why they compel you to do or abstain from doing something.

It also concerned me how so many of our court interpreter colleagues rush to “obey” anything the courts say without even checking the source of the “command”. Many people criticized and condemned the interpreter who spoke to the media because of what the “Professional Standards and Ethics for California Court Interpreters” say. Please understand that this is just a manual, not legislation, regulations, or a court decision. It is just a didactic tool for those who are trying to understand the profession. Use it as such. Observe the California Rules of Court.

I hope we all understand that professional rules include universal standard values, but they also incorporate local culture so necessary for an administration of justice that reflects the values of the community it is meant to serve. For this reason, I. Sincerely hope we all come to understand that asking for universal rules or codes is not the best legal option. A system like the one we have is an appropriate one. We just need to understand the rules better, and fight to change those we believe constitute a hurdle to our profession. I now ask you to please share your founded legal arguments on this issue that could adversely impact our profession.