Question

I use translators in my practice to communicate with my clients. What steps must I take to ensure that I am properly overseeing the services they provide?

Answer

There are several areas of concern when you use a contracted party to provide services relating to the representation of a client. Recent changes to a comment in the Wisconsin Rules of Professional Conduct outline the issues a lawyer should consider when selecting a third-party contractor to assist in providing legal services to a client.

Under the comment to SCR 20:5.3, the considerations for hiring a third-party contractor are defined to include the following:

• Ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of the client information; and the legal and ethical environments of the jurisdiction in which the services will be performed, particularly with regard to confidentiality.

• When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyers’ conduct is compatible with the professional obligations of the lawyer.

The lawyer must use reasonable care when considering these criteria and deciding whether to use a particular third-party interpreter to assist in providing legal representation to a client. The lawyer must exercise reasonable judgment and take reasonable precautions in gathering information to be used to judge the credibility and competence of the third-party contracted interpreter.

The lawyer must also take precautions to ensure the third-party contracted interpreter will maintain the confidentiality of the information conveyed and discussed during the representation. This generally is accomplished by having a frank discussion with the contracted party about the importance of protecting the confidentiality of the information being discussed with the client. It also is reasonable to have the contracted party sign a confidentiality agreement that is properly fashioned to emphasize the importance of keeping information confidential and not disclosing it to any other person.

Recent changes to the comment to SCR 20:5.3 provide more guidance for lawyers when seeking to use an outside third party to assist in providing representation to a client. Lawyers must exercise reasonable care in making choices and must properly oversee the services provided by the third party as part of the representation.