Do we understand what a U.S. federal court interpreter certification really is?

March 12, 2018 § 5 Comments

Dear colleagues:

The irregularities on the administration of the United States federal court interpreter certification exam of 2017 prompted a debate among many colleagues, seasoned court interpreters, those who took the test and are still living in the uncertainty this first appearance by Paradigm unexpectedly brought to their lives, and everybody in between. There are many unanswered questions about the way testing was handled, and there will be plenty of them once the results are announced one day. It is unlikely that once the candidates who feel the “sui-generis” administration of the test significantly impacted their performance are told they failed the exam, they will just accept it and move on. Some colleagues in such situation may be lawyering up just in case. Even those who will be told they passed will face situations never faced by any other federally certified court interpreters before. Maybe the results of their exam will be questioned in some spheres. Sure, the federal judiciary will tell them that their certification is as valid as anybody else’s.

That will be true because the certification will be issued by the same Administrative Office of the United States Courts, and they will be retained to interpret in court just like everybody else. Unfortunately, assignments by others, such as law firms and their clients, could bring them some headaches. Everybody other than the federal judiciary is in the private free market where they can hire any interpreter they please. Some potential clients may show reservations, as unfair as it may look to many of us, about the reliability and skill of an interpreter certified on the year of the messy administration of the test.  There will be many potential clients who will not care, but sadly, some will, and a possibility is that some of those who will could be the biggest players, the ones who pay the higher fees and handle the high profile cases. This ugly situation, out of the interpreters’ hands, could punish excellent interpreters able to pass the exam, whose skills would never be questioned but for the careless administration of the exam. I hope this does not happen, but it could.

During this, the darkest hour of the federal court interpreter certification exam’s history, I noticed certain things that led me to believe that besides the exam, there are misconceptions about the U.S. federal court interpreter certification.

Setting the current situation aside, the federal court interpreter certification exam is a prestigious exam that measures, to a high degree of reliability, the knowledge and skill of a candidate by testing them on all modalities of court interpretation, criminal legal proceedings, specialized terminology, and language fluency. The exam shows if a candidate meets the minimum standards to provide interpreting services in federal court. Passing the exam is just the beginning, not the end. It does not take us to the finish line, it is just the first step on the track. It troubles me to read comments by colleagues who claim they have not picked a book since they took the test 5 months ago; it concerns me to see how some believe they already forgot so much they think they would fail the exam if they had to take it again.

I worry when I read we have colleagues waiting for the test results to decide where to move permanently to apply for a job in a federal courthouse.  I also hear how many candidates believe that, because there is a need for court interpreting services at the federal level, they will be getting tons of work as freelancers in the federal system.  First, there are few openings to work full time as a staff court interpreter; to get the job they would have to beat many other more experienced and better known applicants, plus government budgetary concerns which favor a hiring freeze.

They will get work at the federal courthouse, but not as much as they expect. They will soon realize there is a huge difference between the caseload of a federal and a state or county courthouse, next, they will learn that very few cases go to trial in the federal system, that many hearings requiring interpreting services are covered through TIP (Telephone Interpreting Program) with the interpreter working from a courthouse far away. The newly certified court interpreters will be exposed to the strict (compared to most states’) guidelines and policy requiring that the courthouse hire the services of all certified interpreters in the area in a fair and even manner. There is a rotation in several courthouses to meet this policy. Finally, they will come to understand that most assignments given by a courthouse are for half days.

I also get the feeling that some candidates, and even some certified court interpreters, believe the federal court interpreter certification is the panacea. They assume that their certification will get them conference work, electronic media interpreting assignments, and so on. This is false.

A United States federal court interpreter certification in Spanish is proof that the interpreter passed the toughest court interpreter exam in the United States, that she or he has demonstrated to have the minimum qualifications to work in the federal criminal court system, those with the certification can be responsible professionals and reliable individuals who value professional self-improvement to the point they put themselves through the arduous certification process.  That’s it.

It does not mean that the certified interpreter has the knowledge and skill to interpret a criminal trial; that is acquired through practice, experience, and constant study. It does not even mean that the interpreter has the minimum skills and knowledge to interpret a civil proceeding. The exam tests no knowledge of Civil Law.

As cherished as a U.S. federal court interpreter certification is, it means little in the world of conference interpreting, or in any other interpreting field. There are excellent conference interpreters who started (and continue to work) in the courts, but their success outside the court setting does not come from the court interpreter certification, it comes from their individual effort and determination to study and prepare as conference interpreters, understanding that the two disciplines are different. I get scared when an agency offers me a conference assignment and tells me they only hire conference interpreters who are federally certified court interpreters. This tells me they are an agency that provides community interpreting services (including legal and healthcare) and that the assignment offered is probably not very good. I have never known of any reputable agency that works with conference interpreters say such a thing. It is the same for healthcare interpreting, that is why there is a different certification to work in hospitals and physicians’ offices.

I sincerely encourage all those waiting for the conclusion of this 2017 federal court interpreter certification exam soap opera, to look closely at their expectations as interpreters certified to work in federal court, and once they understand what they got, and what they did not, to study, practice, and plan their work as a professional interpreter with an eye on the future and both feet on reality, and make the choices right for each one in order to succeed not only as federally certified, but as professional interpreters. I now invite you to share your thoughts on this subject.

Interpreter fees and antitrust legislation and policy worldwide.

February 5, 2018 § 10 Comments

Dear friends and colleagues:

I am about to deal with a very touchy, delicate, dangerous, and polarizing issue. For this reason, I want to begin this post by clarifying that I have always observed all antitrust legislation, domestic, foreign, and international, everywhere I have worked, spoken, and in any other way practiced any professional activity. In no way I intend to encourage, suggest, hint, or in any other way provoke the desire to break any antitrust legislation anywhere in the world; and even though I may intellectually and philosophically disagree with part of the antitrust policy and legislation, I am firmly committed to fully obey the law if it remains as is.

Once the above is very clear, I would like to revisit this issue that most colleagues usually dodge, and perhaps for good reason. My intention here is to inform my colleagues about the legislation and policy about agreeing as professional service providers to set professional fees. There is a lot of misinformation, and urban legends around. I hope this piece contributes to dissipate some, and to raise awareness on the situation we have and what can be legally done to enact change, if you really want that.

My motivation to write about this issue came from some news I got about certain events in the Czech Republic, where apparently UOHS, the local Czech antitrust authority initiated proceedings against Jednota tlumocniku a prekladatelu (JTP) the main professional association of interpreters and translators in that country, because of the publication of recommended minimum rates for translation and interpreting professional services on their internal journal (reaching about 500 members) arguing there could be a potential violation of Czech antitrust legislation. Shortly after this happened, JTP settled with the authorities and withdrew said recommended rates with an agreement to abstain from publishing them again.

Czech legislation is very similar to prevailing legislation in the European Union, the United States and elsewhere, prohibiting “…agreements (including decisions of associations) containing provisions on direct or indirect price fixing or other business terms and conditions…” This legislation takes generally adopted terminology when it states on a later paragraph that: “… The prohibition… shall not apply to agreements (that) do not afford… the possibility of eliminating competition in respect to a substantial part of the market…”

I sympathize with all my interpreter and translator colleagues in the Czech Republic. I have often questioned the moral justification and ultimate purpose of all antitrust legislation. It comes to us as a gift from the past when legislation such as this was needed to protect regular citizens from colluded corporations and tolerant governments. We could argue those days are gone; that antitrust legislation is necessary in certain cases, but rarely when it comes to a regular individual trying to earn a living selling goods or providing a service as a freelancer.

Unfortunately, moral considerations also encompass our duty to respect and obey the law, in the understanding that if we dislike it, or disagree with it, we must pursue change by legal means such as lobbying for (in this case) more realistic legislation that reflects the reality of life in the 21st century. Disregarding the law, even if we deem it wrong is not the best answer to solve a problem.

Let’s look at the pieces of legislation widely applied throughout the world, that serve as a model for practically all antitrust legislation.

First, a very important concept difficult to understand (and accept):

Long arm of the law:

In the United States, a Long Arm Statute is a statute allowing a state to exercise personal jurisdiction over a non-resident defendant with certain contacts with the state.

Black’s Law Dictionary: It is a term where a law of a state gives its courts jurisdiction over people and property outside the state.

The United States subscribes to this legal theory and constantly exercises it, and applies to acts and individuals throughout the world. To properly exercise long-arm jurisdiction over a non-resident defendant, the plaintiff’s cause of action must also arise out of one (or more) of the enumerated bases for jurisdiction set out by the state’s long-arm statute. Some of the most common instances include buying, selling, producing, or transporting goods to, from, or through U.S. territory; dealing with people or corporations with some contact with the United States (even if minimum). If country “A” sells a product to country “B”, and the product is transported on a plane or vessel in possession of a registration under country “C”, but the vessel uses American fuel to transport the goods, all parties from countries “A”, “B”, and “C” are under U.S. jurisdiction because of “the long arm of the law” theory. The same happens when a translator from the Czech Republic or elsewhere translates a document used in the United States, even if the direct client is from a third country, and according to more recent tendencies, even if the only contact with the U.S. was that said product was advertised on line using an American internet provider or a platform such as Google, Microsoft or Apple.

Even if a non-resident defendant is subject to personal jurisdiction under a state’s long arm statute, a court within the forum state may not exercise jurisdiction over that defendant if doing so would violate the Due Process Clause of the US Constitution. To satisfy the Due Process Clause, the defendant’s contacts with the state must be so it would “not offend traditional notions of fair play and substantial justice” to require the defendant to litigate in the forum. Courts in the U.S., the European Union and elsewhere have determined that satisfying the requirements on the examples above, and affording the defendant a court hearing will comply with such legal requirements.

The Sherman Act

The main antitrust legislation in the United States, and the oldest (still current) antitrust legislation worldwide is the Sherman Act from the United States. It describes what conduct “Involves” import commerce, and gives the FTAIA and Justice Department main authority to deal with antitrust investigations and prosecution. It does not bar Sherman Act claims that “involve import commerce.” Several courts have recently been asked to consider what sort of “involvement” with import commerce is sufficient. The Third Circuit in Animal Science Products rejected the notion that the “import commerce” exception is limited to physical importers of goods, thus, it applies to service providers like interpreters and translators. The court defined conduct “involving import commerce” as conduct “directed at” or “targeted at” the U.S. import market. Although the original Minn-Chem Seventh Circuit panel agreed with this approach, neither court gave clear guidance on how to apply this standard.

Is a subjective intent to harm the U.S. import market required? Or is it sufficient to allege a global conspiracy to fix prices or set production limits that had as a consequence (as opposed to its focus or target) higher U.S. import prices? The DOJ’s view is that the FTAIA requires no subjective intent to harm U.S. import commerce and that a price-fixing conspiracy involves U.S. import commerce even “if the conspirators set prices for products sold around the world (so long as the agreement includes products sold into the United States) and even if only a relatively small proportion or dollar amount of the price fixed goods were sold into the United States.”  [Minn-Chem Inc. v. Agrium Inc., No. 10-1712, Brief for the United States and the Federal Trade Commission as amici curiae in support of neither party on rehearing en banc (Jan. 12, 2012), at pp. 19] Remember the example of the vessel above.

We can conclude that in the current environment, foreign companies involved in the manufacture or distribution of products (goods and services) outside the United States can no longer assume that the U.S. antitrust laws do not apply to their activities. This is an evolving area of the law with substantial uncertainty. It will take time for these issues to be sorted out in the courts and for clarity to emerge regarding the extraterritorial reach of the U.S. antitrust laws. Until then, a case-by-case analysis will be required to properly assess foreign companies’ potential exposure to criminal penalties (significant fines and jail sentences) and civil damages for violations of the U.S. antitrust laws. Because litigation before American courts is very costly, and the losing party is not required, as a matter of law, to pay for the legal expenses of the prevailing party, defendants often settle their cases and abstain from violating antitrust legislation before reaching a final resolution. This was the case of the American Translators Association (ATA) an association incorporated in the United States. ATA had a “Rate Guidelines Committee” (RGC) that once a year published a list of fees it recommended translators consider. It is possible that said rates (or fees) were reprinted by other professional associations of translators. In 1990 some interpreter and translator professional associations in the United States became the target of antitrust investigation by the Federal Trade Commission (FTC). By 1994 at least two of the organizations: “The American Association of Language Specialists” (TAALS) and the “American Society of Interpreters” (ASI) had signed consent decrees in which the press reported they agreed, among other points, to halt any meetings at which two of those present mentioned rates or fees. After two years of investigation, and significant money spent in defending the association, ATA was notified by the FTC in March 1994 that the investigation had been closed. ATA had approved an strict antitrust policy seven months before the FTC investigation, and this probably contributed to the decision to close the inquiry.  In closing the case, the FTC issued a statement indicating that the closure did not mean that a violation had not occurred. The Commission also reserved the right to “…take such further action as the public interest may require…” Three years later, the FTC issued a cease-and-desist order to the International Association of Conference Interpreters (AIIC) after finding AIIC in violation of U.S. antitrust law. The association also chose a settlement obligating them to abstain from discussing fees (or rates) in public.

US versus EU Antitrust Law

Regarding Antitrust Law, the similarities on both sides of the Atlantic outweigh the remaining differences by far. This holds true, at any rate, today, after more than 100 years of legal development.

The central difference was initially that the relevant U.S.-American law is much older. The Sherman Act dates from 1890, the Clayton Act, which introduced merger control, from 1914 (with a significant improvement by the Celler-Kefauver Act in 1950). These laws were not only existent on paper. They were rigorously enforced in practice. National competition laws in Europe developed mainly after the Second World War. Their development was triggered by introducing the rules on competition in the European Community in 1958. The latter induced many of the Member States, e.g. Italy, to introduce laws against restraints of competition for the first time.

A difference between the legal systems lies in the role of the state. In the USA, antitrust is a matter for private actors. In Europe, the role of the state was inevitably involved. This was due to the extensive involvement of the state in the economy

A common feature of the competition law regimes on both sides of the Atlantic is that they claim for themselves a wide international reach (long arm of the law). It suffices that a restraint of competition has effects within their own territory, regardless of where and by what enterprise it is effected (“effects doctrine” or “extraterritorial application of competition law”). A difference lies in the U.S. Antitrust Law’s better ability to assert itself: Uncle Sam has a very long arm. This is due to the USA usually making up half of the “world-wide market”. No globally acting enterprise can afford not to be present on the U.S.-American market. This inexorably leads to the result it can be caught by the American jurisdiction with no strain. Translators, interpreters, and professional interpreter and translator associations must know of this before taking any action.

Regarding the procedure, both legal systems build upon a rule of law, which is more pronounced in the United States than in Europe. A remarkable difference consists in the fact that in the USA, approximately 75% of all antitrust cases are brought by way of private enforcement

Under American civil procedure law, the American rule prevails. I.e., a defendant wrongly sued has to bear his own legal costs. The unsuccessful plaintiff need not reimburse them. This creates a significant potential for threat in the hands of an economically strong plaintiff. The civil procedure can mutate into an instrument for restraining competition. Just imagine a case between IAPTI and the U.S. Department of Justice. The deepest pockets will prevail.

European Union

Czech Republic and all members of the EU must comply with EU antitrust policy and legislation.

European antitrust policy is developed from two central rules set out in the Treaty on the Functioning of the European Union:

First, Article 101 of the Treaty prohibits agreements between two or more independent market operators which restrict competition. This provision covers both horizontal agreements (between actual or potential competitors operating at the same level of the supply chain) and vertical agreements (between firms operating at different levels, i.e. agreement between a manufacturer and its distributor). Only limited exceptions are provided for in the general prohibition. The most flagrant example of illegal conduct infringing Article 101 is the creation of a cartel between competitors, which may involve price-fixing and/or market sharing.

Second, Article 102 of the Treaty prohibits firms that hold a dominant position on a given market to abuse that position, for example by charging unfair prices, by limiting production, or by refusing to innovate to the prejudice of consumers.

The Commission is empowered by the Treaty to apply these rules and has several investigative powers (e.g. inspection at business and non-business premises, written requests for information, etc.). The Commission may impose fines on undertakings which violate the EU antitrust rules.

National Competition Authorities (NCAs) are empowered to apply Articles 101 and 102 of the Treaty fully, to ensure that competition is not distorted or restricted. National courts may also apply these provisions to protect the individual rights conferred on citizens by the Treaty. Building on these achievements, the communication on ten years of antitrust enforcement identified further areas to create a common competition enforcement area in the EU.

As part of the overall enforcement of EU competition law, the Commission has also developed and implemented a policy on applying EU competition law to actions for damages before national courts. It also cooperates with national courts to ensure that EU competition rules are applied coherently throughout the EU.

Best Practices on Cooperation in Merger Investigations

The revised Best Practices include an expanded section on remedies and settlements that details cooperation throughout the remedial process, emphasizing that early and frequent cooperation in this phase is important to avoid inconsistent or conflicting remedies, especially when remedies may include an up-front buyer and/or Phase I remedy in the EU. The revised Best Practices also underscore the critical role that the parties play in ensuring effective cooperation in this phase, including timely coordination of their remedy proposals with the reviewing agencies to allow for meaningful cooperation before either agency decides. Besides avoiding the risk of inconsistent or conflicting remedies, such meaningful cooperation in the remedial phase can cause the acceptance of common remedy proposals or even the appointment of common trustees or monitors, which is in both the agencies’ and the parties’ interest.

Recognizing that legal professional privileges differ between the U.S. and the EU, how are in-house counsel communications protections maintained once waivers of confidentiality are granted? The Best Practices note that the agencies will accept a stipulation in parties’ waivers given to DG Competition that excludes from the scope of the waiver evidence properly identified by the parties as and qualifies for the in-house counsel privilege under U.S. law. This is only an example of the European Union accommodating U.S. legislation in antitrust matters. There are other instances.

Antitrust legislation in Latin America

There has been antitrust law in some of the Latin American countries for many years. Brazil was the first to have such a law, but for many years enforcement was desultory. Then in the 1980s and 1990s scores of other countries around the world enacted or strengthened their antitrust laws, and this included Latin American jurisdictions such as Argentina, Chile, Colombia, Costa Rica, Mexico and others.

A few jurisdictions had become fairly consistent in enforcing their antitrust laws, including Brazil and Mexico.

Continuing with the reforms, the new authorities of the Argentine Antitrust Commission (the “Antitrust Commission“) released a draft of the new Antitrust Law, which seeks to bring Argentina into line with the international experience in this matter: The Ley de Defensa de la Competencia (As far as I know) passed in the lower chamber when the diputados voted for it, and it is pending approval by the Senate. Among the reforms envisaged are:

Tougher sanctions, increasing fines up to 30% of turnover associated with products or services involved in the anti-competitive act; The creation of a National Antitrust Authority as a decentralized and self-governing body within the national executive branch, in replacement of the Antitrust Commission and of the Secretary of Commerce; The facilitation of private actions for damages against violators of the law; and the creation of a National Antitrust Court of Appeals to replace the uncertainty on which Court of Appeals is competent regarding antitrust matters.

The long arm of the law theory, and current practices and cooperation of all major international players, including the United States, European Union, and others will make it almost impossible to go against current policy and legislation. There is a great likelihood that many complaints will go to the U.S. courts because of the high cost of litigation and the absence of any legal basis for the losing party to pay for prevailing party’s legal fees and costs.

A Private Citizen’s Freedom of Speech.

Individuals may exercise their freedom of speech and speak, write, publish, and in any other way disseminate their opposition to legislation and policy. It will take a change of heart by the authorities, and current cultural values, to change this legislation and bring it to the reality of solo practitioners trying to make a living in the 21st. century. I now invite you to share your thoughts on this issue, remembering that no comment suggesting fees or rates will be included in this blog.

Interpreters advocating for equal access to healthcare and justice? I say: No.

June 26, 2017 § 11 Comments

Dear Colleagues:

Lately, I have been traveling extensively both, domestically and abroad. This has exposed me to many problems and challenges our profession faces all over: An interpreters’ union as the answer to our problems; individuals in decision-making positions constantly advancing the interests of those who seek to eliminate interpreting and translating as professions and turn them into assembly lines at the service of a bizarre “industry”; government agencies charging for interpreting services in settings where it may be legal but it is an unfortunate decision; agencies unilaterally changing contractual terms and interpreters who “celebrate it”; hospitals bragging about their use of non-certified healthcare interpreters…

I will address them all in due time. I will also launch a weekly comment on my You Tube Channel: ”The Professional Interpreter’s Opinion”.  First. I would like to bring to your attention a situation I have encountered everywhere, particularly in the United States, that makes me feel uncomfortable.

Everywhere I go: professional conferences, interpreting assignments, interpreters’ social gatherings; and in everything I read: blog posts, newsletters, professional publications, internet forums and groups, and professional emails, a significant group of colleagues are actively advocating for equal access to healthcare services, state-sponsored assistance programs, and administration of justice, to all individuals who do not speak the local official or customary language. With the United States: English.

I have nothing against equal treatment for all people. I think it is needed and deserved. It actually makes me happy to encounter programs or systems designed and executed in a way inclusive of every individual, regardless of the language they speak or sign.  The thing is: I do not believe that we as interpreters or our professional associations as entities, should be advocating these changes or the delivery of the services. It is for government authorities and individuals involved in social activism to push for, and implement the policy and legislation that will protect us all and guarantee that equality.

Our role as interpreters should be to make sure those interpreting services that will guarantee equal access to all members of society are delivered correctly, by real professionals who meet all education, certification and licensing requirements, observing the highest professional and ethical standards. This must be our priority, to educate others about the profession, and to denounce those who take shortcuts either by allowing unprepared people to deliver the service, or by ignoring policy and legislation to save a buck.

Some of you may ask: Is this not the same as advocating for equal access for all?  The answer is not. Let me explain.

When the Obama administration decided to finally observe Title VI of the Civil Rights Act as it applies to those members of society who do not speak English and request a public service funded by federal money, individual states were told to provide, free of charge, language interpreters in all civil court cases where a non-English speaker requested access to a government program or service funded with money from the federal government. Until then, many state governments were furnishing court interpreters for criminal cases free of charge. Litigants in civil matters had to retain their own interpreters and pay them as all professionals get paid in society: according to the terms of a professional services contract between client and interpreter. Since these fees charged for these services were regulated by the free market, when compared to interpreters’ pay for criminal matters where the state would pay directly to the interpreter based on a preset fee schedule, interpreters would receive a better fee for services provided in state civil court. In a free market this meant that interpreting services were better in civil court. Better interpreters could compete for better pay while other interpreters had to settle for the state-set fee universally paid to all interpreters with no distinction based on their experience or quality of service.

Implementing Title VI ended the system described above as from that moment, state civil court interpreters would be provided at no cost to the litigant, and interpreters’ fees would be paid by the state at the same rate as criminal court cases’. This change killed the practice of many of the better certified court interpreters, in some states because they were banned from court unless working through the state, and in others, because once attorneys and litigants learned of the availability of free interpreters they seldom chose the most-expensive privately retained interpreter (even where they were better than those interpreters offered by the court).

To my dismay, many interpreters celebrated this change and even pushed for its implementation where it had not been adopted by the local courts. I was happy that interpreting services were provided to all, but I was confused on why those making a living as court interpreters would be happy about losing a good source of income.

It is very difficult to understand why so many interpreters actively defend the rights of those who do not speak the official language of a country, and constantly push for an increase on certified interpreters.  I believe that our profession would be better served if we, the professional interpreters, were to spend our time, money and efforts promoting renditions of a better quality, the use more capable interpreters, higher professional fees to attract better people to the profession.

Instead of demanding that a civil court furnish an interpreter, or a hospital provide an interpreter to a patient, we should be demanding an end to despicable practices such as allowing those who failed a certification exam to practice the profession as “accredited” “qualified” or whatever. Instead of advocating for more interpreters in a school district, we should be demanding that agencies who unilaterally change the terms of a professional services contract be expelled from the interpreting agencies’ roster.  Instead of worrying about how poorly doctors, nurses, attorneys, and judges treat non-English speakers, we should be worrying about state agencies refusing to pay travel expenses and Per Diem to interpreters who travel to provide a service.

I do not say that all those other things are not important. I am not saying those other things are fine. All I am saying is that it is not up to us to advocate for them. There are others whose job is to protect these individuals. Nobody else will protect interpreters but ourselves.

Some may say that part of a community interpreters’ duties include advocating for the client. My answer is that they are right. However, the advocating that community interpreters must do is none of the above. A medical interpreter must advocate for a patient when there is a defective communication due to a cultural barrier. A court interpreter must advocate for the client when the defendant, victim, or witness cannot be understood because of lack of cultural knowledge by the English-speaking parties. That is expected. Being an activist for the rights of the non-English speaking population is not one of the interpreters’ duties.

If interpreters want to participate in activism for these populations they should do it, but not as part of the profession.  Involvement in equal- access campaigns as professional interpreters, or as a profession, should be limited to those cases where by promoting the addition of interpreter services to a certain program or service will benefit us as a profession because it will be generating more work opportunities for certified, true professionals who will be making professional fees, while , closing the door to paraprofessionals, those who have failed a certification exam, and all agencies who unilaterally change contractual conditions in detriment of the interests of the interpreter.

This, my friends, is how we should channel our energy when we want to advocate for a cause that touches on the profession . I now ask you to please provide your comments on this issue.

Something is going on in social media that may be detrimental to the profession.

May 4, 2016 § 11 Comments

Dear Colleagues:

Interpreters benefit from the use of the internet in many ways.  We can study, do research, market our services, and communicate with each other anywhere in the world by using our telephone.  Technology helps us to stay competitive in difficult markets and saves us time. Gone are the days when we had to go to a library to research a topic. We can now access the best libraries worldwide from the booth where we are working.

Social media also gave us the very popular and numerous forums, list serves, and chat rooms that all of us visit regularly.  I must confess that, even though I am very active in many social media outlets, I visit very few interpreter forums, and none of the list serves.  For me, the main reason to visit these forums is to keep up with the most recent news that impact the profession, so I can widen my knowledge and understanding of everything that is happening out there .  For the same reason, I am sometimes turned off by some of our colleagues who visit these virtual sites.  I have nothing against learning more about our language combinations, but sometimes it gets to me to see how some interpreters post basic vocabulary questions to the forum members without even bothering to do some research on their own first. I know this is popular with many, and we have discussed it in the past, so I will not dwell on this issue. Like I said, it turns me off, but it does not disgust me.

On the other hand, there is a relatively new trend going around several of the forums that I visit. A practice that has the potential to harm the profession, and end the career of those who participate or advocate this practice.

I am talking about those colleagues who post confidential, and sometimes what can be considered privileged information in the case of court interpreters. I am also referring to those who ridicule and make fun of their own clients.

Interpreting is a profession, and as such, it is governed by a series of legal, moral and ethical principles expected from all those who practice as professionals anywhere in the world. Legal, moral, and ethical rules and principles such as diligence, honesty, and confidentiality are an essential part of an interpreter’s job description. We cannot go around divulging the knowledge acquired in confidence. We are a fiduciary profession. It is not ethical for an interpreter to reveal secrete or confidential information. It is not ethical to share the client’s personal information and private life in public either.

These duties of privacy and confidentiality are even stricter in the case of a court interpreter. Let’s take the case of the United States where court interpreters are legally and ethically bound to keep their mouth shot by Articles 5 and 6 of the Federal Court Interpreter Code of Ethics:

5: Confidentiality.  Interpreters shall protect the confidentiality of all privileged and other confidential information.”   

“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.”

Moreover, when working as agents of an attorney, interpreters are also covered and bound by the stricter client-attorney privilege; a privilege held by the attorney’s client that gives him the right to refuse to disclose, and to prevent any other person from disclosing confidential communications between the client and the attorney (Black’s Law Dictionary).

Rule 1.6 of the American Bar Association (ABA) Model Rules of Professional Conduct, reads:

“Rule 1.6 Confidentiality of Information. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…”

These communications cannot be shared with the public, even with a court order, unless the client waives the privilege (there are some exceptions to the rule that do not apply to our subject matter) and the privilege extends to the attorney’s agents who are considered as action as an “extension” of the lawyer. These agents include legal secretaries, paralegals, investigators, and interpreters, among others (“United States v. Kovel,” 296 F.2d 918, 921 2nd. Cir. 1961)

In the past weeks I have read posts and comments in at least two different forums by individuals who present themselves as court interpreters  (I do not know them by name or in person) revealing information and details of private conversations between an attorney and his client. Moreover, several people have opined about the issues presented by this individual, without the slightest concern about a conduct that is definitely violating all codes of ethics, and may be illegal. I should mention that a few colleagues warned this person and asked this individual not to do this anymore, but for the most part, the person who was doing the posting, and those commenting on the post, continued their debate like noting had happened. I was so bothered by this use of the forum that I left and never went back, so I do not know how long this debate lasted; and even though I do not know the person who posted this, apparently privileged, information, I got the impression that the privileged information was not posted with the intention to breach a legal duty, but out of ignorance and a lack of desire to learn. I should mention that this person did not give names and other details that could easily identify the holder of the privilege, but there was enough privileged information for anyone interested on learning more about the case to find out who were the parties involved.

The second post that I saw was less likely to pierce the client-attorney privilege, but in my opinion it violated the rules of ethics and professional conduct in a truly disgusting way. This was a post by another person who called himself a court interpreter, and went on to argue that his “job as a court interpreter” was not boring because he saw different and new situations every day. Nothing wrong to this point, but next, he gave some examples of the “variety” of cases he is routinely exposed to, by sharing details of some of these cases, and giving his opinion about the parties involved, in a very offensive and demeaning way. These are some of this individual’s comments: “…The… family was lying through their teeth, but… (the) officials were gullible enough to grant them asylum…” and how about this one: “…hours of telephonic interpreting for illegal immigrants… (I) had to hear and interpret a lot of BS…” or this more troubling one: “…defendant asked why he doesn’t qualify for (a legal benefit) the answer was… he had to rat about the people who paid… for his defense…”  Unlike the first case I mentioned above, this individual received many warnings and criticisms for doing what he did, and I believe that for this reason, within a week, this person went back to the same forum and now alleged that the cases were real, but that he had “…added imaginary twists, actions or actors…” that although most (not all) of the cases were not real, “…for the purpose of initiating an intelligent debate, (he) presented them as actual, real cases…” and claimed to be a victim of attacks by those who did not want any “personal opinions”.  Finally, to make things even worse, this person defended his posts by indicating that he was justified to do so, because they had been posted in a closed forum… on the internet!

I did not write this blog to attack anybody or to end the career of any colleagues or alleged colleagues. That is why I did not revealed any names of individuals or forums, and I tried to show just enough of the published posts to convey the idea of what is troubling me. I wrote this piece because I see what is going on in these social media outlets and it concerns me. I believe that the rules of ethics and professional conduct must be observed because we are professionals, and more importantly, because they affect others who confided on us as providers of this fiduciary service. It is not the same to betray your clients’ confidence and air private matters the way these people did, or to present the facts of a case to your colleagues in a professional forum, observing all professional and ethical rules, in order to get an opinion or to dissipate a doubt. This is done by all professionals: physicians, attorneys. accountants, and interpreters on a daily basis.

I think that the majority of those who have violated these rules did not know what they were doing, and I believe that social media forums, when used appropriately, are a valuable tool.  Perhaps we need to educate those who do not know the rules, and maybe we need to assess the moderators and the guidelines of some of these forums.  What we cannot allow is a situation that will leave us all in a bad place as a profession, and in an ugly position as individual practitioners; and I am not even mentioning the tremendous liability that those who violate these canons (and in some cases the law) are exposing themselves to. I ask you to share your comments on this topic, and to do so without any personal attacks.

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.

What are court interpreters afraid of?

April 10, 2015 § 18 Comments

Dear colleagues:

During my many years of practice I have seen and heard a lot of things. As a staff interpreter and as a freelancer, I have attended meetings where court interpreter policy had been discussed.  I have many friends and acquaintances who were, and still are, court employees.  A good number of them do a good job, others do not. From the staff interpreter’s perspective, these policy meetings are permeated by two very strong forces:

The sense of duty to the profession that these colleagues experience as they hear the sometimes absurd proposals by their bosses. This makes them reflect on the reason why they were hired in the first place: Their knowledge of the profession, so they end up putting themselves in the shoes of the practicing freelance interpreter who is about to be victimized by the judicial system. They have to go through these emotions. No doubt. It happened to me when I worked for the courts.

The second, very powerful force in the meeting room is called the sense of loyalty, the corporate spirit. They are constantly reminded, directly and indirectly, that they are now one of “us”, the court administration; that they are no longer one of “them”, the freelancers.  They perfectly understand that loyalty is expected. These two forces clash inside the staffer’s head and heart, and the collision can produce two results:

The clear realization by the staff interpreter that he was hired to present the professional interpreters’ perspective, to make sure that no decision would be made without first considering and evaluating the effects of such changes on the delivery of the service and the quality of the performance. When this happens, the interpreter opposes all nonsense that is about to become institutional policy, and voices his objections out loud, perhaps suggesting a meeting with the freelancers before any decisions are made.

Unfortunately, the second result is the one that prevails most of the time: Staff interpreters, afraid of losing their jobs, or at least the favor of their supervisors, remain silent, and sometimes may even suggest the steps need to implement the new policy despite the freelancers’ opposition.  Of course, it is easier to act and react out of fear.  Some of these interpreters are more concerned about their retirement than about the interpreting services provided in their jurisdiction.  Others are terrified of the idea of losing their job and having to go out there to fight for every single dollar they would have to earn as freelance interpreters.  Fear means inaction. It means that harmful decisions, sometimes adopted in good faith by the administration, will become the new rules, and staffers will do nothing to stop it.

This is how bad policy comes to be. How it becomes a reality is up to the freelance interpreters, because once the wrong policy is implemented, independent contractor interpreters have two clear options: They can refuse to work under those circumstances and look for other clients, or they can renegotiate with the courts (sometimes they should even take legal action when the administration has clearly breached the terms of the independent contract they may have with the freelance interpreter).

Unfortunately, many interpreters prefer to submissively accept the new rules and comply, even if it means less income, even when it is demeaning to the profession.  They are acting and reacting out of fear.  The thought of waking up tomorrow and realizing they do not have to go to court because they were not asked to interpret scares them to death. To them, court work, even in exchange for a rock bottom fee is peace of mind.  They firmly believe that as long as they keep working, even when underpaid, they are doing the best they can.

This is the biggest problem that court interpreting faces as a profession in the United States, because, unlike our colleagues in the U.K., too many court interpreters in America are willing to roll with the punches and work more for less and under worst conditions.  Many interpreters forget that courts are a client, not an employer. The court administrator and the interpreter supervisor are not their boss, they are a client, and they are not even your best client, as courts pay far less than private clients in the legal field.  Interpreters must remember that as providers of a professional service, they are bound by a contract, and so are the courts. Both parties are equal. Nobody is less. Contracts are meant to be negotiated, not blindly accepted; and just like with everything else in life, when the terms of the contract are not what you want, walk away without signing on the dotted line. There are other clients.

When court interpreters start thinking of the courts as their client, not their boss, the free market will kick in, and interpreters, just as attorneys, will be able to get a professional fee. Until then, I am afraid that court interpreting will continue to go backwards.  I now invite you to share your ideas and proposed solutions regarding this crucial issue to the future of court interpreting, and please, do not answer by saying that there is no other work outside the courts, because there is.

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