Pre-Deposition Interpreting Services
A common situation goes something like this:
A foreign language deposition interpreter is hired by one lawyer to provide foreign language translation to his or her client during pre-deposition or pre-hearing preparation. During this time, the foreign language interpreter serves as the lawyer’s agent and, thus, attorney-client privilege is preserved.
Later the same foreign language interpreter is asked to provide foreign language translation during the deposition, or the Examination Before Trial (EBT), or hearing. In this case, the foreign language interpreter has no agency relationship with either attorney and, instead, acts as an agent of the court.
Clearly, such a situation can raise questions as to a conflicts of interest. On the one hand, one can question the conflict of interest of the foreign language interpreter for failure to avoid contact with either side. But one can also question whether or not the attorney who used the foreign language interpreter for pre-deposition preparation is acting unethically by jeopardizing the attorney-client privilege.
In general, there is little case law to govern the use of foreign language interpreters in both the pre-deposition setting and the deposition itself – aside from rules stating when a foreign language interpreter is required. Instead, the rules of procedure generally leave governing this area up to the individual attorneys. When an attorney learns of this potential conflict of interest, it is up to him to object to the use of a foreign language interpreter based on an argument of non-impartiality. When properly raised, a court will review the issue in a similar manner used when a challenge to the use of a specific judge or other court personnel is raised.
See United States of America v. Ana Yuby Payan Paz, 981 F.2d 199 (U.S. App. 5th Cir. 1992).