Ignoring court certifications is turning fashionable.

April 23, 2018 § 4 Comments

Dear colleagues:

Legal certainty is the foundation of any system of justice administration. Modern society cannot function in an environment where people are afraid to act because they ignore the outcome of their efforts. Human creativity and progress need a certainty that a set of actions will produce a desired outcome, and the peace of mind fostered by an absolute trust in an honest, capable and independent judge who will clarify what is confusing and decide what is contested according to law and equity.

All civilized nations enshrine these principles in their national constitution and create international courts of justice to address controversies that go beyond their own jurisdiction. To work, this system requires of honest, independent, capable, skilled, and knowledgeable professionals who serve as judges, attorneys and other officers of the court, including court interpreters.

No legal system can be fair when some are denied access to justice because of the language they speak, and no access to the administration of justice can be effective unless its services are provided by skilled professionals who have met rigorous standards set by the authority under the principles of equal justice uncompromised by expediency or convenience.

Every day we see how more nations adopt these principles, sometimes because of the realization of the truths above, and sometimes because the change is imposed by the unstoppable waive of globalization. Countries have changed their legal systems to incorporate these values, and as part of these changes, they have adopted legislation requiring court interpreters to be professional, ethical, skilled and knowledgeable. Some have called this process certification, others licensing, concession of patent, accreditation, etcetera.

Countries like the United States have developed a solid and reputable system of certification at both levels of government: federal and state.  Because the overwhelming majority of non-English speakers in the U.S. speak Spanish, all states and federal government have developed a certification process (licensing process in Texas) for Spanish language court interpreters. The federal government has issued federal court interpreter certifications in Navajo and Haitian Creole as well. To satisfy their local needs, states have adopted certifications for the most widely spoken languages, other than Spanish, in their jurisdiction; these certifications vary depending on the demographics of each state. Both, the federal and state judiciaries have adopted a system to classify court interpreters of languages without certification program as accredited or qualified.

Court interpreter certifications guarantee litigants and judges those officers of the court who provide interpreting services in a court procedure have demonstrated, through a rigorous scientific testing process, to have the minimum required skills, knowledge, and ethics to practice as professional certified court interpreters. Accredited and qualified court interpreters give litigants and judges an assurance that the federal or state system in charge of language access services was convinced of the skill, moral character and professionalism of these interpreters by alternate means to the certification process non-existent for that language combination.  It all boils down to the basic principle of legal certainty.

Many countries have a dual system of administration of justice: There is a judiciary as an independent branch of government that decides controversies between individuals, government entities, and in criminal cases. There is also a sui-generis administrative court system that exists not as a part of the judiciary or as an independent branch of government, but as an independent entity within the executive branch at both: federal and state levels. These administrative courts deal with civil law controversies of the administrative type where individuals dispute certain actions, benefits, entitlements, and rights that must be protected, conferred, or denied by an agency of the executive branch of government. The best known administrative courts in the United States are Immigration, Social Security and Workers’ Compensation.

Because these administrative courts are not part of the judicial branch of government, rules, policies and requirements pervasive in the judiciary do not extend to these so-called Article 1 Courts (because they are created by legislation, not the constitution) as opposed to Article 3 Courts (created by Article 3 of the U.S. Constitution). Rigorous criteria for court interpreter certification, created for legal certainty, are not applied or followed by most administrative courts, leaving the door open to those seeking shortcuts, opportunity, and financial gain with absolute disregard for judicial certainty and the best interests of the parties to a controversy.

A few weeks ago the Immigration Courts in the United States (Executive Office for Immigration Review, or EOIR) publicly announced they were hiring Spanish language interpreters nationwide to work in the immigration courts. Although this would place these interpreters directly under the supervision and control of the court, a big improvement over having people providing interpreting services in immigration court under the supervision of SOSi, the well-known language services provider that earned the contract by bidding lower than the rest, it is still bad policy that will eventually harm those who go to immigration court seeking relief.

EOIR’s announcement requires no reputable universally accepted court interpreter certification (federal or state level). It only requires candidates to pass a test with no scientific validation offered online.

This tendency to retain lesser qualified individuals for matters that could eventually affect someone’s life forever, such as a removal or an asylum case, is echoed by those who also settle for less interpreting quality in exchange for more money and argue that non-certified court interpreters, even if healthcare certified, or those who take cover under the unrecognized so-called “community interpreter” credential, are qualified to interpret depositions!

Depositions are a very delicate legal proceeding because they take place outside the presence of a judge. This means they require of an even more experienced certified court interpreter, not a lesser qualified paraprofessional. The most complex litigation, the ones involving enormous amounts of money, the ones often dealing with conflict of jurisdictions and legal systems, those governed by international conventions, and for those very reasons, the ones where interpreters earn the highest fees, always start with depositions very difficult even for many seasoned court interpreters.

Multi-million dollar lawsuits, intellectual property infringements, trade wars between nations, the livelihood of an injured worker who will never work again, removal proceedings that will keep a person outside the country for the rest of her/his life, asylum hearings, often an applicant’s last hope to protect her/his life, liberty and family unity are not less complicated cases. We cannot leave the administration of justice for those who do not speak the language of the court, judicial or administrative, in the hands of greedy agencies, ignorant unscrupulous authorities, and opportunists and incompetent paraprofessionals. I now invite you to share your thoughts on this topic and the disturbing tendencies we see.

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.

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