Are we protecting our profession? Part 1.

March 29, 2016 § 49 Comments

Dear Colleagues:

Every now and then something happens in our profession that makes me wonder if we are truly doing what is best for all of us: individually and collectively as interpreters and translators.  In fact, this happened recently when I learned, like many of you, that the American Translators Association had revisited the antitrust legislation issue and had reviewed its policy.  As expected, ATA followed its traditional pattern of protecting the “interests” of the association over the interests of its individual members or the profession, and adopted a policy that clearly observes antitrust legislation as is, without questioning it.   It is not clear to me how the association arrived to this resolution to endorse everything the government wants, and is included in the legislation and case law, without first seeking a legal opinion from attorneys who disagree with the current antitrust laws or their interpretation by the government.  As I understand it, the mission of a professional association is to advance and protect the interests of its members and the profession they practice.  This can only be accomplished by assessing the current legislation as to its impact on those who it is supposed to protect.  I am convinced that a well-publicized campaign to get public comments from the membership, and seeking a legal opinion as to how to interpret the current legislation in the light most favorable to the interests of the individual interpreters and translators, which could have included proposed amendments to the antitrust legislation would have been fruitful and very successful.  Of course, it would have rocked the status quo where big multinational businesses, sponsors or members of the association, benefit from the current interpretation of the law and the association’s corporate policy, that leaves the individual members on an uneven field where they cannot talk about the insulting and sometimes degrading fees, or rates as these huge corporations refer to them, that are offered for their interpreting and translation services.

We all want to comply with the law, and nobody is suggesting that we break any legislation. On the contrary, we should always observe the law of the land, as these rules and regulations exist to protect the weaker members of society from the actions of those who are in a position to take advantage of them.  This does not mean that we should not question a legal precept when we believe that it is not advancing justice or protecting the weak.

Antitrust legislation was born in the United States in the latter part of the 19th. century when the legislator, first at the state level, and later at the federal Congress, saw the need to protect consumers from big business that at the time was acting as big conglomerates with “excessive” economic power according to the opinion of a majority of the citizens of the United States. The goal of the legislation was to regulate the conduct of business corporations by promoting a fair competition for the benefit of the consumer. Legislation such as the Interstate Commerce Act of 1887, the Sherman Act of 1890, the Clayton Act of 1914, and the Federal Trade Commission Act of 1914 became the law of the land.  They were followed by more recent laws like the Robinson-Patman Act of 1936 and the Celler-Kefauver Act of 1950. Ohio Senator John Sherman clearly explained the rationale behind this policy when he said that: “…If we will not endure a king as a political power, we should not endure a king over production, transportation, and sale of any of the necessaries of life…” (Speech delivered in the U.S. Senate on March 21, 1890) The U.S. Supreme Court agreed with this spirit of the legislation when it referred to the Sherman Act as a “charter of freedom, designed to protect free enterprise in America” (Appalachian Coals, Inc. v. United States, 288 U.S. ({{{5}}} 1933) 344 [359]) Antitrust legislation goes against the freedom of speech protected by the First Amendment of the Constitution, but it is tailored under strict scrutiny to limit this right only as it protects the consumer from the voracious unscrupulous merchant. We have many examples of these businesses throughout the more than one hundred years of antitrust laws in the country: The mining industry, the automobile industry, and even the telephone industry are some of the examples that come to mind. In all of these cases we can clearly see the benefits of restricting commercial and industrial activities to avoid monopolies.  We do not dispute that, but the fact is that the world has changed and we now face a very different economic reality than the one faced by the antitrust legislator of the 19th. century.

Technological advances and the rapid growth of globalization have created a world with uneven realities and circumstances in many fields, including interpreting and translating. When applied today, the rules conceived to protect the weak from the powerful, provide shelter to multinationals like Capita, SOSi, and LionBridge who take advantage, with the blessing of some of our professional associations, of the legal ban to talk about fees and working conditions of professional interpreters and translators who are forced to negotiate with commercial, not professional, entities who take advantage of any circumstance they can use in their favor.

But it does not need to be that way, a careful reading of the law shows us that discussing fees and work circumstances is legal, as long as there is no agreement to fix a fee.  The problem is that, to avoid any possible discomfort, some professional associations adopt internal rules and policies where all mention of fees has been proscribed.  It is clear that there is a need for litigation, it is the courts, not the executive branch, who should decide if these 19th. century rules designed to protect the little guy from big business should apply to individuals who make a living from the practice of a professional service, not an industrial or commercial activity (despite the efforts by many to convince us of this model) who are constantly oppressed and taken advantage of by the big business of multinational interpreting and translation corporations.

Who is the little guy who needs the protection of the law under these circumstances? Professional service providers should not fix their fees for services offered to their individual clients: the consumers in this scenario; but there is a big difference between offering services to a neighbor or a store down the street where I live, and having to accept rock bottom fees from publicly traded entities who have a presence in fifty countries.  The court system needs to decide these cases, and if the decision is adverse, the legislation has to be changed. Not all legislation is good or fair; in fact, there are plenty of examples where we can see how the law created or enabled an unjust situation. Let us remember that not long ago the United States had legislation that favor slavery, or deprived women from the right to vote.  This is where professional associations are expected to act to protect their individual members and above all: the profession.

Perpetuating the present situation will not advance the profession, it will mutate it into some kind of involuntary servitude where the big guys will call the shots.  I now ask you for your comments, in the understanding that nobody is calling for violating current legislation, just to change what we have right now, and to opine about the role that a professional association should play when the profession needs to be protected from exterior forces who are trying to hijack it from the interpreters and translators.   Next week we will discuss the same topic from a different perspective: The professional associations and the battle against the professionalization of the interpreter.

State court interpreter certifications could turn meaningless.

October 16, 2014 § 17 Comments

Dear Colleagues:

A couple of weeks ago I received an email that concerns me enormously. I am sure that many of you who are based in the United States have received similar emails from state-level judicial agencies. In my case, I got an electronic communication from the Administrative Office of the Courts of one of the fifty states in the U.S. (not the federal government) this was one of those global emails that are sent out to everybody on a master list. Basically, the message was that the National Center for State Courts in the United States (NCSC), apparently in coordination with (at least) some states, is planning to offer remote telephonic interpreting across state lines, and for that purpose, the states (and I assume the NCSC as well) are compiling lists of state-level certified court interpreters who may want to be part of the interpreter pool that will be used to interpret court hearings from a different state. Although I hope the message’s meaning was different, this is what I understood. The email is written in such a way that, to the reader, this idea looks good and beneficial for everyone: the interpreters, because they will have more work (although I would guess that the fees offered by the state governments will not be anything to brag about) the states with underserved populations due to the lack of interpreters, because they will get somebody who has been certified somewhere by a state-level judiciary, and the foreign language speaker, as they will have the services of a professional interpreter instead of a family member or a paraprofessional.

Does it sound good to you? Well, if I understood the email as a communication asking permission to include interpreters’ names on a master list to indiscriminately interpret by phone, regardless of the state, it did not sound even half decent to me. Let me explain:

It is true that state-level certified interpreters are better equipped than paraprofessionals, and therefore the service provided should be of better quality. It is true that all state-level certified interpreters have attended a basic orientation and they have passed a court certification test (now administered by the NCSC or CLAC) and in many cases they have also taken an ethics and professional responsibility test. This obviously puts them ahead of those unscrupulous people that are roaming through the hallways of many courthouses in the United States. Unfortunately, and this is the real and very big problem: these interpreters, who have been certified by one of the fifty states, would now interpret cases from other states where both substantive and adjective law are different. That is the problem. The interpreter will interpret legal proceedings based on legislation that he does not know. Unlike U.S. federally certified court interpreters who work nationwide because they interpret the same federal legislation all across the country, these state-level individuals will have to deal with fifty, sometimes very different, legal systems.

Just like the age to get married and gun control laws vary from state to state, the catalog of crimes and civil law contracts are different. Think of one single situation: battery and assault; or is it assault and menacing? Well, the answer is: it depends on the state, and the differences are radical. Penalties and procedures also change depending on the state. This is why attorneys can only practice in those jurisdictions where they have passed the Bar Exam. It is a very delicate matter.

If this is indeed what the NCSC and the states want to do (and I hope I am wrong) then I am extremely concerned as an interpreter, because this will be another attempt to de-professionalize our jobs and make them look more like the legal secretary who can work anywhere, and less like the attorneys who can only practice in the state (or states) where they are members of the state bar. Sure, I understand that state-level agencies will praise the “benefits” of this solution, which in reality will solve their own problem (not the interpreters’ or the foreign language speakers’): Compliance with Title VI of the Civil Rights Act. This is a state-level priority because states that do not comply will lose federal money.

I am also worried as an attorney for several reasons: First, states will allow interpreting services across state lines using telecommunications. This could be an interstate commerce issue where the federal government has to participate (at least); but the second reason is the one that motivated me to write this post: interpreters who do not know the legal system of a particular state will practice in that jurisdiction. They may physically be in the state where they are certified, but their services will affect a court system, and litigants in another state where they have never demonstrated their capacity to practice. I believe attorneys who represent foreign speakers need to be aware of this potential “solution” so that from the beginning they know that perhaps the case could later be appealed for ineffective assistance of the interpreter. Attorneys need to know that when they are advising their client on an assault charge in their home state, they may be using the services of an interpreter from a state where assault really means battery. Lawyers will need to assess the potential procedural complications in case they sue the interpreter. Jurisdiction will have to be determined, and these lawsuits could end up in federal court.

If this “program” has also been planned for civil cases, then the problem is worse. Remember, there are at least three different civil legal systems in the United States, the one followed by those states who have a system based on the Anglo-Saxon tradition, those whose system comes in part from the days where these territories were part of the Spanish Crown (just think divorce and community property division) and then Louisiana and the Napoleonic written system. As an attorney, or a foreign language speaker, I would not want to have an interpreter from another state, much less one from a state where the system is different.

I sure hope that this “solution” (if conceived as I understood it) is discarded and the states look for better options such as a higher fee for those interpreting in state courts. There are very good and capable interpreters everywhere in the United States, it is just that they will not work for the fees currently offered. A more attractive fee would also encourage others who would like to join the profession but are reluctant because of the lack of money to even make a decent living.

By the way, these problems apply to those languages where there is no certification and the interpreters are registered or qualified to work in court by a particular state.

I really wish I am mistaken and this is not happening in the United States, but if it is, I will continue to watch the developments of this program, and if needed, I will speak up in legal forums to bring awareness of the potential risks generated by using state-level certified interpreters in places where they have never been certified. I now ask you to share your thoughts, and concerns, about this potential change that would end up rendering a state-level court interpreter certification useless.

What is the New Court Interpreter to do after the Certification?

June 28, 2012 § 1 Comment

Dear Colleagues:

Every month people get certified as court interpreters somewhere in the United States.  We all see the news reports stating that there is a shortage of court interpreters in the country, and yet, many of these newly-certified professionals do not know what to do, where to go, how to get started in their careers.

A well-known scenario is that of the new interpreter who goes to the courthouse looking for work and he is “front-desked” by all regular, “veteran” interpreters who already work there, fear the new-blood competition, and do their best to discourage the newly certified colleague with the hope that he or she will move on to another courthouse somewhere else.

Another everyday situation is that of the new interpreter who goes to the programmer, chief interpreter, administrator, or whatever other title she may have. The interpreter is greeted and welcomed because they need him, but the person in charge is from another time, a time when courts used to hire people not fully qualified to foster new interpreters. The result is that this new, potentially good, court interpreter learns from the worst available role models. Pretty soon the talent goes to waste as these new interpreters are exposed to all the defective practices that their supervisors endorse. Sadly, this interpreter will now join the ranks of those bad, allergic to study court interpreters who will spend the rest of their lives living from paycheck to paycheck without ever advancing their professional career.  A lot of talent gets wasted this way!

Some of us who have been around for some time in this profession are constantly trying to help these new interpreters (in courthouses, hospitals, booths, etc.) but there are not enough of us willing to help, capable of doing so, and with time to do it. That is why I decided to write a manual: “The New Professional Court Interpreter” that addresses all of these practical situations that are not taught in school.  My manual is very concise, extremely user-friendly, and it was put together with the idea of creating something useful to all new interpreters, regardless of their language pair. I know that this manual will benefit the new court interpreter who wants to work every day as a court interpreter; but I also know that it will help the part-time interpreter who will interpret during the summer, or those who can only work sporadically because of their language combination.  In fact, because “The New Professional Court Interpreter” covers ethical issues, research and case preparation tips, and protocol while in a courtroom depending on the type of court, this publication will be very useful to those practicing interpreters who occasionally work other type of hearings: administrative, civil, immigration, etcetera.

The manual has a practical focus; it is designed to help the interpreter with the everyday tasks of being a person who makes a living interpreting in court, and leaves all theory and technical issues for another day, a day that supposedly already happened in the lives of those who already achieved certification.  I invite you to purchase the book.  You can order it from Amazon, from Creatspace, or directly from my website by leaving a message with your information.  To order through Amazon go to this link: http://www.amazon.com/The-New-Professional-Court-Interpreter/dp/1477556966/ref=sr_1_1?s=books&ie=UTF8&qid=1340884792&sr=1-1&keywords=the+new+professional+court+interpreter

I ask you to visit the websites, get the book, and share your thoughts about the topic in this space.

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