The presence of a foreign language interpreter does not in general terminate attorney-client privilege. However, there are instances where the interpreter’s presence could constitute waiver of this privilege. The most notable of these privilege pitfalls is when a foreign language interpreter accidentally or intentionally reveals privileged information to a third party. When then happens, it is considered a waiver of attorney-client privilege, which is forever waived with respect to any third party who later requests it during discovery.
Waiver is typically considered waived when the actual attorney-client communication – or even just details about it – are disclosed outside the relationship, including to friends, family members or others whose role is not related to facilitating communication between the attorney and client. More so, the courts have held that there is no requirement of ‘intent to waive’, thus it can easily occur when a party mistakenly makes a disclosure. In particular, the court will look to see if the party failed to take adequate steps to prevent the mistake from occurring.
And of course all of this will fall onto the attorney as they are held responsible.
To learn about working with professional deposition interpreters and court interpreters visit A Lawyer’s Guide to Cross-Cultural Depositions.
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