Generally, attorney client privilege is not waived where the third party consultant serves as a “translator” or “interpreter” of the client’s communication with counsel. United States v. Kovel, 296 F. 2d 918 (2 nd Cir. 1961). The court reasoned that the otherwise privileged information does not lose its privileged status because “it is shared in furtherance to facilitate communication between attorney and client, thus promote the provision of competent, informed advice by counsel.”
Courts are generally likely to preserve attorney client privilege. However, if the privileged information is shared with third party consultant for a purpose other than to aid in interpreting data or communication between client and counsel, then court can find waiver of the attorney client privilege. United States v. ChevronTexaco Corp., 2002 U.S. Lexis 24970 (N.D.Ca., 2002). (court found privilege was waived because the information was disclosed for the purpose of gaining advice about compliance with tax code). In a recent (Oct 2017) CLE in Nevada on Using Interpreters, the author wrote that main concerns of using interpreters are:
1. Interpreter’s personal interest in the outcome of the case could violate Rule 1.7 conflict of interest. This could occur if the interpreter is a close family or friend.
2. Risk that the interpreter could waive the attorney client privilege by choosing to disclose information, otherwise privileged. Make sure that the interpreter has basic understanding and consent to the confidentiality of the communication.
3. Also, make sure that the interpreter is not giving his or her own legal advice to the client.
There are no case law or statute which requires a certain qualification of an interpreter, i.e., license. It is recommended to use the services of an interpreter qualified by a body such as the Administrative Office of the Courts. They maintain a list of qualified interpreters.
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