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Non-English speaking clients

Feature Articles

Cite as: March 2016 90 (03) LIJ, p.36

Providing independent legal advice to a party to a proposed financial agreement in family law can be perilous, particularly where the client has limited or  no proficiency in English. 

By Victor Tse and Bonita Tsang

Snapshot
  • The cases of Bilal & Omar, Hoult & Hoult and Blackmore & Webber highlight the risks of providing legal advice to parties with limited English.
  • The client’s understanding of the advice is as important, if not more so, than the provision of legal advice.
  • There are many ways a practitioner can minimise the risks including using accredited translators and interpreters, using plain English and being sensitive towards cultural differences.
  • There are many pitfalls family lawyers need to avoid when providing independent legal advice to clients with limited or no proficiency in English. Parties must obtain independent legal advice when entering into a financial agreement pursuant to the Family Law Act 1975 (Cth).1 Such an agreement allows parties who agree on financial issues to formally finalise them. It can be entered into by married or de facto couples at any time before, during, or after the relationship.2 Where an agreement is found to be binding, it ousts the jurisdiction of the family law courts to make financial orders. Accordingly, independent legal advice is a crucial part of creating a binding agreement. Lawyers must give advice in respect of:

  • the effect of the agreement on their rights
  • the advantages and disadvantages of the financial agreement to the party at the time that the advice was provided.3
  • Since their introduction in 2000, courts have set aside financial agreements on the basis of inadequacies in drafting or review and advice by lawyers. Within the profession, there is concern that financial agreements are uncertain and risky for both clients and their lawyers. This has led to a number of law firms declining to prepare or advise on financial agreements.

    Additional complexity is introduced when clients are of a non-English speaking background. This challenges lawyers to communicate and effectively advise people who may not be used to legal systems and may hold world views starkly different from those prevalent in Australia.

    Recent cases
    Bilal & Omar4

    The husband Mr Bilal and wife Ms Omar signed a financial agreement in February 2007. Three years later, Ms Omar pleaded her alleged lack of understanding of the financial agreement as a reason for it to be set aside. She claimed that she did not understand the legal advice provided by her solicitor prior to signing the agreement.

    Ms Omar had no English skills. She only spoke a Lebanese dialect of Arabic and was also illiterate in her native tongue.

    Ms Omar’s solicitor provided her with verbal advice in Arabic, though he spoke this in an Egyptian dialect (which Ms Omar claimed at trial not to understand). However, the solicitor also arranged for an Arabic interpreter to explain the financial agreement to Ms Omar after the meeting.

    The trial judge ultimately found that since the solicitor was not present at this later session and could not have known what the interpreter had said, he effectively failed to “inform and give legal advice” to his client. Although the case was eventually overturned on appeal and remitted for rehearing due to other reasons, this case highlights the very real risks in advising clients with no or limited English proficiency.

    Hoult & Hoult5

    After separating from her husband in March 2011, Ms Hoult sought a declaration that the financial agreement she had signed in December 2004 was not binding because she had not been given the requisite legal advice.

    Ms Hoult had one consultation with her solicitor, during which she read the 11-page financial agreement on her own and then the solicitor read it to her again verbatim. Ms Hoult claimed that she did not “fully comprehend” what the solicitor had read to her as English was not her first language, even though she had assisted her husband with his business affairs.

    The trial judge accepted that Ms Hoult had only a day-to-day fluency in English, which was different to appreciating the complex nuances of the language. The judge also considered the consultation to be too short given the complexity of the financial agreement, and particularly since English was Ms Hoult’s second language. The decision was overturned on appeal but the point is still valid and instructive.

    Blackmore & Webber6

    In this case, the wife successfully applied to set aside a prenuptial agreement entered into in 2004 on the basis that the husband had engaged in unconscionable conduct.

    The Court was satisfied that the husband took unfair advantage of the wife’s special disability pursuant to the test outlined by Deane J in Commonwealth Bank of Australia Limited v Amadio & Anor.7 It found that the wife had only a limited command of English at the time of signing the financial agreement, having arrived in Australia on a student visa just three years earlier. Combined with other attenuating circumstances (such as a lack of familial support), this lack of proficiency amounted to a special disability.

    Although the wife did not allege that she did not understand the independent legal advice provided by her solicitor due to her poor understanding of English, it is conceivable that this could have been an additional or alternative basis for setting aside the agreement.

    What this means for lawyers

    The above cases highlight some of the risks that lawyers may face when advising non-English speaking clients. These risks may be avoided or minimised by adopting the following measures.

    However, lawyers should note that a large number of migrants inevitably revert to the family law system, giving rise to many other such problems. Unfortunately, these issues are not addressed or reported in case law because it is often too difficult to get redress under the current law.

    Party’s understanding in their preferred language

    In order to comply with the legislative requirements of providing independent legal advice, lawyers should take steps to ensure that their client has an understanding in their preferred language of the content and impact of the documents that they are signing. The client’s understanding of the advice is as important, if not more so, than the provision of legal advice.

    Although s90G(1)(b) does not expressly refer to understanding of the advice by the party, best practice would require lawyers to ensure the client’s comprehension, analogous to the need to establish testamentary capacity in the context of will drafting. The Legal Professional Uniform Law says in relation to the communication of advice by lawyers: “a solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken . . .”8 This is consistent with a lawyer’s fundamental duties to “act in the best interests of a client”9 and to “deliver legal services competently, diligently and as promptly as reasonably possible”.10

    Translation

    Consider translating the financial agreement into the client’s preferred language. This should be done by an accredited translator with experience in a legal setting, preferably in the area of family law. As an additional safety measure, a family lawyer conversant in that language should review the accuracy of the translated document. Allow the client time to read the document and to discuss and ask questions.

    One of the authors was once engaged by a specialist family law firm to provide independent legal advice to the Chinese-speaking spouse of their Australian client. Apart from the draft financial agreement, the law firm also provided the author with a Chinese translation of it.

    Working with interpreters

    Where an interpreter is required, lawyers should use one certified by NAATI.11 Part of an interpreter’s role is to bridge the cultural and linguistic gaps between the lawyer and the client and to facilitate the overall legal process. The quality and accuracy of a translation are crucial features that are more likely to be provided by a properly trained interpreter. Untrained interpreters and family members of the client should not be used.

    Even if a lawyer can speak the same language as the client, there may be times where they misunderstand each other, such as when the lawyer is not a native speaker of the language or is more comfortable with a different dialect (as was the case in Bilal & Omar). It is prudent in such a situation to use an interpreter.

    Where the use of an interpreter is not possible or appropriate, lawyers should refer the client to a practitioner who speaks the client’s language.

    If an interpreter is used, it is appropriate to brief them about relevant words and concepts before meeting with the client.12 This allows the interpreter to be prepared ahead of time, minimising the number of on-the-spot interpretations about important legal terms.

    Plain language

    Lawyers should use plain language when communicating with their clients. They must remember that they are speaking to someone who may have limited or no exposure to the Australian legal system. Interpreters are not permitted to explain the concepts themselves, so the use of legal jargon should be minimal.

    Additionally, a particular legal term may not exist in the foreign language in question. Indeed, the complexity of linguistics means that certain words and sentences in English may have no equivalents in other languages. Lawyers should be careful about their choice of vocabulary. If legal terminology is unavoidable, these expressions should be accompanied with a clear explanation of what they mean so that the interpreter can convey this to the client.

    In particular, lawyers should avoid using expressions that may be hard for clients to understand, such as idioms. Interpreters make an oath or affirmation that they will “well and truly interpret the evidence” (see Schedule 1 to the Evidence Act 2008 (Vic)). However, it is unclear whether this means English must be translated literally, which can lead to absurdity, or in context, which requires a layer of personal interpretation on the part of the interpreter.13 Lawyers should therefore avoid using figures of speech to eliminate the risk of any confusion or misunderstanding.

    Like terminology, grammatical structures can also vary greatly between languages. Using plain English helps to prevent ambiguity and loss of meaning by ensuring that communication is clear and straightforward. It also helps the interpreter to easily switch between the client’s preferred language and English.

    To address these issues, lawyers must develop the necessary skills to work effectively with non-English speaking clients. These methods must approach concepts and legal vocabulary in a way that accurately reflects the legal position of the client. Here, the role of the lawyer extends to bridging the disjunction between Australian and foreign cultures in order to properly assist the client.

    Clarity of communication is crucial in any setting, especially in a legal context. Indeed, communication issues between clients and lawyers are a common complaint to the Legal Services Commissioner.14 Using language that is easily understood will best assist the interpreter and ultimately, the client’s case.

    Summary

    When advising non-English speaking clients:

  • use plain English
  • be aware of cultural and legal differences
  • translate a copy of the agreement into a native language document for the client if possible
  • use accredited interpreters experienced in family law settings
  • brief interpreters regarding the relevant terminology and concepts used in the document
  • refer to a family practitioner with native language skills where appropriate
  • ensure the client fully understands the agreement (provision of advice is no substitute if the client does not truly understand the advice).
  • Victor Tse is principal solicitor at Victor Tse & Associates. He is an LIV accredited specialist in business law and a candidate for a Masters in Applied Family Law. He is fluent in Cantonese and Mandarin. Bonita Tsang was formerly a legal assistant at Victor Tse & Associates. She graduated with a Juris Doctor from Melbourne Law School in 2015 and holds a Bachelor of Biomedicine (Neuroscience) from the University of Melbourne. She is now pursuing a career in tax law. 1. Family Law Act 1975 (Cth), ss90G(1)(b), 90UJ(1)(b). 2. Note 1 above, ss90B, 90C, 90D, 90UB, 90UC, 90UD. 3. Note 1 above. 4. Bilal & Omar (2015) FamCAFC 30. 5. Hoult & Hoult [2013] FamCAFC 109. 6. Blackmore & Webber [2009] FMCAFam 154. 7. Commonwealth Bank of Australia Limited v Amadio & Anor (1983) 151 CLR 447, 474. 8. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), Rule 7.1. 9. Note 8 above, Rule 4.1.1. 10. Note 8 above, Rule 4.1.3. 11. NAATI is the National Accreditation Authority for Translators and Interpreters Ltd. Interpreters should be certified to at least the professional interpreter level (formerly known as Level 3). 12. See also S Hale “Interpreter policies, practices and protocols in Australian courts and tribunals. A national survey”,¬†AIJA, Melbourne, 2011, www.aija.org.au/online/Pub%20no89.pdf. 13. Judicial Commission of New South Wales, Interpreters (March 2013), www.judcom.nsw.gov.au/publications/benchbks/local/interpreters.html. 14. Victorian Legal Services Board and Commissioner, Making a Complaint (27 October 2015), http://lsbc.vic.gov.au/?page_id=3077.

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