Protecting Privilege: Using Interpreters Responsibly
Communications between the Interpreter and the client are privileged if the Interpreter is acting as the agent of an attorney
United States v. Kovel is the bedrock federal decision concerning the use of third parties to facilitate privileged attorney-client communications. In Kovel, the court found that the accountant’s presence in the communication did not cause a privilege waiver because the accountant’s role was primarily to facilitate the attorney-client communication, rather than provide accounting (or translation) services for other reasons. Most federal circuits follow the Kovel directive, including the District of Columbia and fourth circuit.
Many states have enacted statutes and ethics cannons that expressly recognize the applicability of the attorney-client privilege when an interpreter facilitates confidential communication between lawyer and client. These jurisdictions also require attorneys to properly train and monitor their paraprofessionals, including independent contractors. These ethical obligations strongly place primary responsibility for preserving privilege and communicating effectively on the attorney and interpreter.