COLUMN > Ethics & the Law
By Mark J. Fucile
When my father’s family sailed from Naples to New York just shy of a century ago to start a new life in America, my aunt (the oldest of the children) began a long career as an informal interpreter for my grandmother.11 For history buffs, the bridge of the ship they sailed aboard, the SS Conte Biancamano, is now in a science museum in Milan (www.museoscienza.org/en/collection/objects/conte-biancamano-ocean-liner). The rest of the ship was eventually scrapped. Although times have certainly changed in many ways since then, America’s still-vibrant mosaic puts a continuing premium on language skills in many walks of life—including law practice. Recognizing the critical importance for lawyers and clients to understand each other, the WSBA earlier this year issued an advisory opinion discussing language access issues in law practice.
Advisory Opinion 202601 is available on the WSBA website.22 https://ao.wsba.org/print.aspx?ID=1715. The opinion examines three broad areas. First, it outlines the Rules of Professional Conduct that come into play when working with a client who does not communicate proficiently in English.33 Advisory Opinion 202601 also applies the general considerations discussed to clients who have non-cognitive physical conditions that may affect their ability to communicate with a lawyer, such as hearing, speech, or vision conditions. For clients who have cognitive conditions that may impact their decision-making ability, see RPC 1.14. Second, it notes that if a lawyer cannot competently communicate with a prospective client (and is unwilling to engage appropriate interpreters and translators), the lawyer would ordinarily be obliged to decline the representation. Finally, the opinion includes practical suggestions for working with interpreters and translators.
We’ll touch on each of those areas in surveying Advisory Opinion 202601.44 Nationally, the ABA released Formal Opinion 500 in 2021 that addresses many of the same issues. Regionally, Oregon issued Formal Opinion 2024-203 in 2024 that echoes many aspects of the ABA opinion. Those opinions are available on, respectively, the ABA (www.americanbar.org) and Oregon State Bar (www.osbar.org) websites.
Before we do, three qualifiers are in order.
First, Advisory Opinion 202601 uses the term “interpreter” to refer to oral communications, and “translator” for written communications. The opinion notes that a lawyer’s duties are largely the same regardless of the medium.55 WSBA Advisory Op. 202601 at 2 (“Interpreters and translators are both dual language proficient individuals who help people communicate across languages, but they work with different mediums. Interpretation is the process of orally rendering communication from one language to another language, while translation is the preparation of a written text from one language into an equivalent form in another language. For purposes of this discussion, a lawyer’s obligations regarding the use of an interpreter (oral) or translator (written) are the same.”). Therefore, we’ll generally use those terms interchangeably.
America’s still-vibrant mosaic puts a continuing premium on language skills in many walks of life—including law practice.
Second, Advisory Opinion 202601 comes at the issues from the perspective of lawyers in private practice settings rather than those encountering interpreters employed or appointed by the state or federal court systems.66 See RCW Chap. 2.43 (state court); 28 U.S.C. § 1827 (federal court). See also Washington ER 604 (addressing qualifications and oath for interpreters in court proceedings); Fed. R. Evid. 604 (same). We’ll take that same approach here.
Third, Advisory Opinion 202601 includes a discussion of translation technology—while focusing on the process rather than the specific means. For a broader discussion of artificial intelligence tools in law practice, the WSBA surveyed that topic in late 2025 through Advisory Opinion 202505 that is also available on the WSBA website.77 https://ao.wsba.org/print.aspx?ID=1713. The ABA also issued Formal Opinion 512 in 2024 that surveys AI tools generally from a national perspective.
The Rules
Advisory Opinion 202601 is painted against the backdrop of three fundamental rules of lawyer-client communication and decision-making: RPC 1.4, 2.1, and 1.2(a).
RPC 1.4(a) focuses on keeping the client reasonably informed about the representation and RPC 1.4(b) obliges the lawyer to explain the matter involved in a way that the client can understand.
RPC 2.1 reminds lawyers that they are more than simply legal mechanics and that legal advice is most effective when conveyed, as the rule puts it, within the broader context of “other considerations … that may be relevant to the client’s situation.”
RPC 1.2(a) addresses the allocation of decision-making between lawyers and their clients—and reserves to clients the key decisions concerning the representation such as settlement.
Woven together, RPC 1.4, 2.1, and 1.2(a) emphasize that we need to communicate clearly with clients so that they have the information they need to make informed decisions about the legal matters we are handling for them.
With this context, Advisory Opinion 202601 focuses on two additional RPCs that come into play when a lawyer uses an interpreter or translator: RPC 1.1 on competence and RPC 1.6 on confidentiality.
On the former, unless a lawyer is thoroughly proficient in the client’s language, Advisory Opinion 202601 counsels that competently representing a client who is not proficient in English ordinarily requires the lawyer to retain a qualified interpreter. For the same reason, Advisory Opinion 202601 also counsels that documents should ordinarily be translated before sending them to the client. Advisory Opinion 202601 observes that competence includes selecting an interpreter or translator with appropriate qualifications and supervising their work.88 Advisory Opinion 202601 notes that supervision of nonlawyer assistants—whether direct employees of the lawyer or independent contractors—is the responsibility of the lawyer under RPC 5.3. See also ABA Formal Op. 08-451 (2008) (discussing outsourced support services generally).
On the latter, Advisory Opinion 202601 notes that confidentiality is best protected when the interpreter or translator is either employed by or retained by the lawyer.99 Advisory Opinion 202601 counsels that a lawyer using interpreters or translators should explain the confidentiality issues to the client and obtain the client’s consent consistent with RPC 1.6. Prudently, the lawyer would ordinarily want client consent confirmed in writing—with an engagement agreement providing a ready venue to reflect the client’s authorization. Although substantive privilege law is beyond the scope of an advisory ethics opinion,1010 Advisory Opinion 202601 includes a citation in an endnote to State v. Aquino-Cervantes, 88 Wn. App. 699, 945 P.2d 767 (1997), on the interplay between privilege and interpreters. The Court of Appeals in Aquino-Cervantes observed: “The notion that an interpreter acts as an ‘agent’ of the attorney, and therefore … [falls within privilege] … is supported by analogous case law in Washington.” Id. at 708. Aquino-Cervantes has been cited approvingly on this general point by other Washington courts. See, e.g., Kelley v. Microsoft Corp., 2009 WL 168258 at *2 (W.D. Wash. Jan. 23, 2009) (unpublished); Peeler v. Boeing Co., 2015 WL 13841119 at *2 (W.D. Wash. July 10, 2015) (unpublished). Advisory Opinion 202601 borrows from that adjacent law to underscore that if the interpreter or translator is an agent of the lawyer, then confidentiality should typically be protected in the same way it is with other law firm staff or specially retained assistants.1111 If a family member of the client is instead being used as an interpreter, the focus for purposes of privilege is typically on whether that person is reasonably necessary to facilitate the communication between the lawyer and the client. See generally Aquino-Cervantes, supra, 88 Wn. App. at 707 (“While there are no Washington cases on point, other courts and legal authorities have concluded that an interpreter who is necessarily present during attorney-communications” falls within privilege.”); Robert H. Aronson, Maureen A. Howard, and Jennifer Marie Aronson, The Law of Evidence in Washington at 9-6 (rev. 5th ed. 2024) (“Communications to persons who are essential to the confidential relationship
do not constitute waivers of privilege. Thus, for example, communications to interpreters … , are privileged if necessary to further communication between the privilege holder and the attorney[.]”). Advisory Opinion 202601 also notes in this regard that if a lawyer uses translation technology, the lawyer is expected to research the means used to ensure that it is compatible with the duty of confidentiality as with other technology used in law practice.1212 See generally WSBA Advisory Ops. 2215 (2012) (confidentiality considerations when using cloud-based storage of electronic files), 202505 (2025) (confidentiality considerations when using AI tools in law practice).
The Limitations
Although we usually think of RPC 1.16 as the “withdrawal rule,” its title since adoption in 1985 has always been “Declining or Terminating Representation.”1313 See Robert H. Aronson, “An Overview of the Law of Professional Responsibility: The Rules of Professional Conduct Annotated and Analyzed,” 61 Wash. L. Rev. 823, 856 (1986) (surveying the then-recently adopted Washington RPC—including what was then numbered RPC 1.15 on declining or terminating representation); see also ABA, A Legislative History, The Development of the ABA Model Rules of Professional Conduct, 1982-2013 at 365-66 (2013) (the same title has also always been part of the corresponding ABA Model Rule—1.16). Effective September 1, 2026, the Washington Supreme Court adopted amendments to RPC 1.16 that put a finer point on analyzing whether a representation should be undertaken. The Washington amendments mirror similar changes to the corresponding ABA Model Rule that are discussed in detail in ABA Formal Opinion 513 (2024). The amendments do not alter the analysis offered by Advisory Opinion 202601. One of the mandatory grounds for declining a representation under RPC 1.16(a)(1) is when undertaking the representation would cause the lawyer to violate the RPCs.1414 Advisory Opinion 202601 notes that these same precepts apply to withdrawal where a lawyer has already taken a matter on. Advisory Opinion 202601 reminds lawyers that if they lack language skills necessary to work with a client with limited English proficiency and are not willing to retain appropriate interpreters and translators to meet the standard of competence in RPC 1.1, then they must ordinarily decline the representation.1515 Comment 2 to RPC 1.1 notes that a lawyer can in theory acquire the requisite competence to handle a matter after taking it on. The comment qualifies this, however, with the following observation: “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve[.]” While not addressing language directly, this observation underscores that a lawyer undertaking a matter for a client with limited English proficiency must retain appropriate interpreters and translators to be able to handle the client’s work competently if the lawyer is not thoroughly fluent in the client’s language. Comment 2 to RPC 1.1 also notes that another general path to competence is to associate another lawyer who has the requisite competence to assist with the representation. Depending on the circumstances, this may be another avenue if, for example, a lawyer is associated into a matter who has the required language proficiency or has the resources to retain appropriate interpreters and translators.
The Practical Considerations
Without diminishing the important analytical context provided by the first two areas, Advisory Opinion 202601’s concluding section on practical considerations is in many respects a “must read” for lawyers working with interpreters and translators for clients with limited English proficiency. Although Advisory Opinion 202601 surveys a wealth of practical issues, they largely fall into three general categories: selection of an interpreter or translator; practical tips for working with interpreters and translators; and costs.
Advisory Opinion 202601’s concluding section on practical considerations is in many respects a ‘must read’ for lawyers.
Selection. Advisory Opinion 202601 counsels that although translation applications may be adequate for handling routine scheduling and similar non-technical interactions with clients, “[c]omplicated and substantive communications will require more accurate human interpretation and translation services.”1616 Id. at 5. For the latter, Advisory Opinion 202601 suggests that lawyers can ordinarily look to certification by a professional organization or court system in choosing an appropriate interpreter. The opinion reminds lawyers, however, that they also need to make sure that the interpreter is fluent in the client’s particular dialect and has the ability to translate technical legal concepts. Advisory Opinion 202601 includes a nuanced discussion of using family members as interpreters—ranging from a client’s comfort to possible conflicts among family members to the potential impact on privilege.
Practical Tips. Advisory Opinion 202601 leads with an extensive list of practical tips for working with an interpreter and then follows with a similar list for translators. For interpreters, they range from optimal seating arrangements to facilitate the communication, how to segment the conversation to ensure an accurate translation, and avoiding lawyerly jargon. For translators, a key “best practice” tip for legal documents on which the client will rely over the long haul is to consider having a second translator review the accuracy, word choice, and readability of the initial translation.
Costs. Advisory Opinion 202601 notes that the costs for interpreters and translators can ordinarily be passed along to the client as an expense.1717 See generally RPC 1.5, cmt. 1 (addressing, in relevant part, reimbursement for reasonable costs and expenses incurred). At the same time, the opinion stresses that prudent practice is to discuss that with the client at the time of the engagement. Depending on the anticipated cost in relation to the services involved, prudent lawyers may wish to call that out specifically in the engagement agreement rather than rely on a more generic description of “costs and expenses” being passed along in addition to the fees involved.
ABOUT THE AUTHOR
Mark J. Fucile of Fucile & Reising LLP handles professional responsibility and risk management for lawyers, law firms, and legal departments throughout the Northwest. He is a former chair of the WSBA Committee on Professional Ethics and has served on the Oregon State Bar Legal Ethics Committee. He is editor-in-chief of the WSBA’s Washington Legal Ethics Deskbook and is a principal co-editor of the WSBA’s Law of Lawyering in Washington and the OSB Ethical Oregon Lawyer. He also teaches legal ethics as an adjunct for the University of Oregon School of Law at its Portland campus. He can be reached at 503-860-2163 and:
NOTES
1. For history buffs, the bridge of the ship they sailed aboard, the SS Conte Biancamano, is now in a science museum in Milan (www.museoscienza.org/en/collection/objects/conte-biancamano-ocean-liner). The rest of the ship was eventually scrapped.
2. https://ao.wsba.org/print.aspx?ID=1715.
3. Advisory Opinion 202601 also applies the general considerations discussed to clients who have non-cognitive physical conditions that may affect their ability to communicate with a lawyer, such as hearing, speech, or vision conditions. For clients who have cognitive conditions that may impact their decision-making ability, see RPC 1.14.
4. Nationally, the ABA released Formal Opinion 500 in 2021 that addresses many of the same issues. Regionally, Oregon issued Formal Opinion 2024-203 in 2024 that echoes many aspects of the ABA opinion. Those opinions are available on, respectively, the ABA (www.americanbar.org) and Oregon State Bar (www.osbar.org) websites.
5. WSBA Advisory Op. 202601 at 2 (“Interpreters and translators are both dual language proficient individuals who help people communicate across languages, but they work with different mediums. Interpretation is the process of orally rendering communication from one language to another language, while translation is the preparation of a written text from one language into an equivalent form in another language. For purposes of this discussion, a lawyer’s obligations regarding the use of an interpreter (oral) or translator (written) are the same.”).
6. See RCW Chap. 2.43 (state court); 28 U.S.C. § 1827 (federal court). See also Washington ER 604 (addressing qualifications and oath for interpreters in court proceedings); Fed. R. Evid. 604 (same).
7. https://ao.wsba.org/print.aspx?ID=1713. The ABA also issued Formal Opinion 512 in 2024 that surveys AI tools generally from a national perspective.
8. Advisory Opinion 202601 notes that supervision of nonlawyer assistants—whether direct employees of the lawyer or independent contractors—is the responsibility of the lawyer under RPC 5.3. See also ABA Formal Op. 08-451 (2008) (discussing outsourced support services generally).
9. Advisory Opinion 202601 counsels that a lawyer using interpreters or translators should explain the confidentiality issues to the client and obtain the client’s consent consistent with RPC 1.6. Prudently, the lawyer would ordinarily want client consent confirmed in writing—with an engagement agreement providing a ready venue to reflect the client’s authorization.
10. Advisory Opinion 202601 includes a citation in an endnote to State v. Aquino-Cervantes, 88 Wn. App. 699, 945 P.2d 767 (1997), on the interplay between privilege and interpreters. The Court of Appeals in Aquino-Cervantes observed: “The notion that an interpreter acts as an ‘agent’ of the attorney, and therefore … [falls within privilege] … is supported by analogous case law in Washington.” Id. at 708. Aquino-Cervantes has been cited approvingly on this general point by other Washington courts. See, e.g., Kelley v. Microsoft Corp., 2009 WL 168258 at *2 (W.D. Wash. Jan. 23, 2009) (unpublished); Peeler v. Boeing Co., 2015 WL 13841119 at *2 (W.D. Wash. July 10, 2015) (unpublished).
11. If a family member of the client is instead being used as an interpreter, the focus for purposes of privilege is typically on whether that person is reasonably necessary to facilitate the communication between the lawyer and the client. See generally Aquino-Cervantes, supra, 88 Wn. App. at 707 (“While there are no Washington cases on point, other courts and legal authorities have concluded that an interpreter who is necessarily present during attorney-communications” falls within privilege.”); Robert H. Aronson, Maureen A. Howard, and Jennifer Marie Aronson, The Law of Evidence in Washington at 9-6 (rev. 5th ed. 2024) (“Communications to persons who are essential to the confidential relationship
do not constitute waivers of privilege. Thus, for example, communications to interpreters … , are privileged if necessary to further communication between the privilege holder and the attorney[.]”).
12. See generally WSBA Advisory Ops. 2215 (2012) (confidentiality considerations when using cloud-based storage of electronic files), 202505 (2025) (confidentiality considerations when using AI tools in law practice).
13. See Robert H. Aronson, “An Overview of the Law of Professional Responsibility: The Rules of Professional Conduct Annotated and Analyzed,” 61 Wash. L. Rev. 823, 856 (1986) (surveying the then-recently adopted Washington RPC—including what was then numbered RPC 1.15 on declining or terminating representation); see also ABA, A Legislative History, The Development of the ABA Model Rules of Professional Conduct, 1982-2013 at 365-66 (2013) (the same title has also always been part of the corresponding ABA Model Rule—1.16). Effective September 1, 2026, the Washington Supreme Court adopted amendments to RPC 1.16 that put a finer point on analyzing whether a representation should be undertaken. The Washington amendments mirror similar changes to the corresponding ABA Model Rule that are discussed in detail in ABA Formal Opinion 513 (2024). The amendments do not alter the analysis offered by Advisory Opinion 202601.
14. Advisory Opinion 202601 notes that these same precepts apply to withdrawal where a lawyer has already taken a matter on.
15. Comment 2 to RPC 1.1 notes that a lawyer can in theory acquire the requisite competence to handle a matter after taking it on. The comment qualifies this, however, with the following observation: “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve[.]” While not addressing language directly, this observation underscores that a lawyer undertaking a matter for a client with limited English proficiency must retain appropriate interpreters and translators to be able to handle the client’s work competently if the lawyer is not thoroughly fluent in the client’s language. Comment 2 to RPC 1.1 also notes that another general path to competence is to associate another lawyer who has the requisite competence to assist with the representation. Depending on the circumstances, this may be another avenue if, for example, a lawyer is associated into a matter who has the required language proficiency or has the resources to retain appropriate interpreters and translators.
16. Id. at 5.
17. See generally RPC 1.5, cmt. 1 (addressing, in relevant part, reimbursement for reasonable costs and expenses incurred).