September 2016

¿Hablas español? – Ethical Considerations in Advertising to and Drafting Fee Agreements Negotiated with Non-English Speaking Clients

By Richard Hendlin

Attorney at Law

According to U.S. Census Bureau estimates, as of July 2015, California had a population of approximately 39,145,000 people, of which approximately 43.8 percent aged five and above either “sometimes” or “always” spoke a language other than English at home. (See http://www.census.gov/quickfacts/table/PST045215/06,00.) This percentage — which equates to almost 17,145,000 million Californians — is by far the highest percentage of non-English speakers for any state in the union, and it is more than twice the national average. (See http://www.census.gov/content/dam/Census/library/publications/2013/acs/acs-22.pdf

Given these demographics, it is no wonder many California attorneys seek to advertise their services to non-English speaking prospective clients. If successful in these efforts, the attorneys must then negotiate a fee agreement with their new clients. This article will briefly review some of the important ethical considerations when attorneys advertise and draft fee agreements for non-English speaking clients.

Under California Rule of Professional Conduct [CRPC]1-400(E), which governs lawyer advertising and solicitations, one form of "communication" concerning the availability for professional employment that is presumed to be a violation of rule 1-400 because is likely to be false or misleading is:

“(15) A 'communication' which states or implies that a member is able to provide legal services in a language other than English unless the [lawyer] can actually provide legal services in such language or the communication also states in the language of the communication (a) the employment title of the person who speaks such language and (b) that the person is not a member of the State Bar of California, if that is the case.” (CRPC 1-400(E), Standard 15.)

Thus, if a law firm’s advertisement, website or letterhead states “Se Habla Español” (Spanish spoken here) and the only person in the office who speaks Spanish is a law clerk, to avoid application of the presumed violation set out in CRPC 1-400 (E), the advertisement must state, in Spanish, that the person who speaks Spanish is a law clerk in the office and not a member of the California State Bar. (See Vapnek, Tuft, Peck & Weiner, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2012) ¶2:513.)

Attorney fee agreements are regulated by statue. (Bus. & Prof. Code § 6146 et seq.) Written fee agreements are required in contingency fee cases and in non-contingency fee cases where the client is not a corporation and it is reasonably foreseeable the total fees and expenses will exceed $1,000. (Bus. & Prof. Code §§ 6147 (a) and 6148(a).) The fee agreement must be signed by both the attorney and the client, or the client’s guardian or representative…” (Bus. & Prof. Code § 6148(a) (d) (4).) A duplicate of the contract, signed by both attorney and client must be given to the client at the time the contract is entered into. (Bus. & Prof. Code § 6148(a).)

Based upon data from 2009-2011, in California, the five languages other than English that are most widely spoken at home are Spanish, Chinese, Tagalog, Vietnamese, and Korean. These five languages are spoken at home by approximately 3.5 million of the 3.8 million Californians with limited or no English proficiency, who speak a language other than English at home. (Civ. Code §1632 (a) (3).)

In order to “increase consumer information and protections for the state’s sizeable and growing” non-English speaking citizens, in 1976 the California legislature passed the California Translation Act, codified at Civil Code section 1632, which, as amended, now governs consumer transactions effected in the five most common non-English languages spoken in California: Spanish, Chinese, Tagalog, Vietnamese, and Korean. 

Among other types of contracts and transactions, Civil Code section 1632 mandates that where an attorney fee agreement is negotiated primarily in one of the five listed languages, orally or in writing, the attorney must deliver an unexecuted copy of the agreement to the client translated in the language in which the agreement was negotiated, including a translation of every term and condition in the contract or agreement, before the client executes the agreement. (Civ. Code §1632(b)(6); See Vapnek, Tuft, Peck & Weiner, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2012) ¶5:617.)  It is never sufficient for the lawyer to give the foreign-language-speaking person the translation after he or she has executed (signed) the contract. (California Department of Consumer Affairs, Foreign Language Translation of Consumer Contracts, Legal Guide K-4 (May 2012), available at http://www.dca.ca.gov/publications/legal_guides/k-4.pdf [hereinafter DCA Legal Guide.)

An exception to the translation requirement exists where the client negotiates the terms of the agreement through “his or her own interpreter” which means a person, not a minor, able to speak fluently and read with full understanding both the English language and any of the specified languages in which the contract or agreement was negotiated, and who is not employed by, or whose service is made available through, the person engaged in the trade or business. (Civ. Code §1632 (h); See also DCA Legal Guide].)

A party’s fluency in English is irrelevant to section 1632, which makes no reference to a party’s English-language proficiency. Section 1632 is triggered by the language in which a contract is negotiated. For example, even where a party had written his Ph.D. dissertation in English, a court found an agreement negotiated in Korean violated California Civil Code section 1632 by failing to furnish the party with a Korean translation of a loan agreement that had been negotiated entirely in Korean. (ING Bank, FSB v. Ahn, 717 F.Supp. 2d 931, 933 (N.D. Cal. 2010)

If a lawyer fails to comply with Civil Code section 1632, the client may rescind the contract. (Civ. Code §1632 (k).)

In interpreting a contract subject to the foreign-language translation law, the signed English contract determines the rights and duties of the parties. (Civ. Code §1632(j), DCA Legal Guide.) If, however, there is a substantial difference between the English contract and the foreign-language translation, the law states that this may show that no contract was ever entered into.” (Ibid.)

Although Civil Code section 1632 only specifies five languages, if a client lacks fluency in English and the fee agreement is negotiated primarily in any other language than English, the better practice is to have the fee agreement translated into the client’s native language to avoid problems involving mutual assent.

The DCA Legal Guide states “the law does not require a foreign-language translation for any later documents authorized by or expected to be made under the original contract or its modifications. Examples of those documents which need not be translated include periodic statements, sales slips, invoices,  . . . that are provided by or made pursuant to the original contract.” (DCA Legal Guide) Nevertheless, it would seem prudent and appropriate for attorneys to provide translations of key documents, such as written settlement demands under Code of Civil Procedure section 998.

**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**