By Jennifer De La Cruz
Regardless of the venue in which we provide our services as interpreters, one of our most critical duties is to preserve the privacy of the information we learn about those we serve. Professional codes and standards from such organizations as the National Association of Judiciary Interpreters and Translators, ATA, and the Judicial Council of California have taken great care to highlight the importance of confidentiality, often taking matters a step further by providing practical examples and pitfalls that benefit new and seasoned interpreters alike. This article outlines just a few examples of such pitfalls from criminal court and offers some thoughts on how to avoid the slippery slope leading to inadvertently divulging information that is subject to attorney-client privilege and general privacy standards.
I would venture to assert that just about anyone who studies interpreting, and perhaps even those who do not, can embrace the importance of preserving confidentiality in this profession. Moreover, these individuals are likely capable of explaining the concept of confidentiality in great detail. Of course, the basic message behind the standard is “don’t,” and I truly believe that professional interpreters have a phenomenal reputation for strict adherence to this rule. Perhaps some find it very easy; others likely find it more of a challenge, while still others may not realize they have broken the rule. My experience is that some settings are simply conducive to the casual divulging of information, whereas others represent such a stringent, guarded environment that the interpreter hardly wants to utter a salutation, let alone improperly reveal a secret. That said, how can we as professionals ensure that our duty to avoid breaking a veritable “code of silence” is upheld regardless of our surroundings?
As we will see below, it is not really a matter of defining what information should be kept confidential. Instead, we need to treat all information, whether public or privileged, as something to protect, even if just to develop good habits that can be applied across the board. Considering that interpreters are expected to maintain neutrality, which is another topic altogether, avoiding unnecessary discussions about case information can promote impartiality.
[pullquote align=”right” color=”#195392″ size=”18″]“…we need to treat all information, whether public or privileged, as something to protect”[/pullquote]
Jurors and opposing counsel most likely come to mind when we think of the players in the criminal court system with whom we make an extra effort to avoid sharing confidential information. However, even if we never expressly reveal information directly to these or other participants in a criminal case, we need to remember that even the most unsuspecting walls can have ears. Consider these scenarios:
- Counsel overhears interpreters conferring cheerfully about the fact that their trial has only two more defense witnesses, after which they will be done for the day. This is information learned during an attorney-client conference, and the opposing counsel did not intend to reveal the witness lineup at that point.
- A member of a jury is waiting down the hall from her assigned courtroom when two interpreters approach a nearby doorway, commenting about their colleague’s experience on the witness stand on that juror’s case. Furthermore, the juror overhears the interpreters expressing personal viewpoints about how such cases should end in a particular verdict.
- Interpreters at lunch discuss the questioning of a witness. They try to keep their conversation discreet by speaking in their non-English language, but are overheard by family members of the victim in that case who speak that language. These family members had been excluded from the proceedings as potential witnesses.
Fortunately, as a staff interpreter at the Superior Court of California, policies and procedures implemented and enforced by Human Resources on the subject of confidentiality do a great service by periodically reminding employees to be aware of situations like those above. However, because interpreters do become privy to an open exchange of information between the parties in the cases on which they work, the limitations on how and where information is revealed can become fuzzy. The walls surrounding the clerk’s office, for example, could serve as a great reminder for clerk staff to uphold a strict code of silence when stepping outside. However, as interpreters we work right in the middle of the ebb and flow of the judicial process, providing services to a variety of players, with no walls to remind us of where to exercise self-restraint.
Making Confidentiality a Purposeful Habit[pullquote align=”right” color=”#195392″ size=”18″]“(…) the limitations on how and where information is revealed can become fuzzy”[/pullquote]
When we think of the most highly respected attorneys in our courthouse, it is likely that those who come to mind take the importance of confidentiality to the highest level, ensuring at all times that even the most minimum discussions regarding cases occur behind closed doors. Interpreters may work in courthouses that have varying proportions of attorneys who fit this profile, and even within an individual court there may be variations between departments or levels of offense.
As an officer of the court, the professional conduct of interpreters is measured by a similar standard. As facilitators of communication, it may seem counterintuitive to limit the exchange of information. The close friendships and valuable sounding boards we have in our colleagues can contribute further to making strict limitations less second nature. Some habits, however, can be developed with a purposeful aim to prevent slip-ups that can cause not only uncomfortable situations but true miscarriages of justice. Here are a few practices to keep in mind:
- It goes without saying that there should be a firm conviction that need-to-know discussions about cases are off-limits when there is any risk whatsoever that they would not be kept strictly confidential.
- Within the confidential environment, when discussing terminology or even other matters that can help interpreters better perform their duties, restrict the information. Think carefully about whether the information could be shared at such a time when it cannot easily be connected to any particular matter.
- Adopt a more neutral perception regarding cases by avoiding personalization and nicknames (“the Smith matter” instead of “my murder case”). This can help avoid the temptation to hold unnecessary discussions about the case.
- When interpreting even the most innocent of information, make it a habit to keep an extremely low voice. This may not always seem necessary, but making it a constant practice makes it second nature to protect all information.
As we consider the suggestions above, we must keep in mind that interpreters are often in grave need of expressing pent-up emotions and sharing experiences with colleagues. Remember, making it a habit to preserve confidentiality does not preclude interpreters from participating in appropriate debriefings. The key is to pause and reflect, and find the time, place, and even the person that is most appropriate for this purpose. In the professional environment, there is no place for gossip or mindless chatting for entertainment purposes. Developing strict habits regarding confidentiality can assist in avoiding any temptation to use debriefings too liberally. As Roman historian Quintus Curtius Rufus put it, “Habit is stronger than nature.”
Merriam-Webster defines a habit as “a behavior pattern acquired by frequent repetition or physiologic exposure that shows itself in regularity or increased facility of performance.” When we think about our profession as interpreters, it is one thing to pride ourselves in having strong ethical standards regarding confidentiality. It is something different to practice upholding these standards even in the most difficult of circumstances.
Despite any behaviors we may perceive by others in our daily encounters, purposefully adopting habits that are stricter than what may seem necessary can be the key to protection against divulging information. Further, if our confidentiality practices are ever called into question, we will have no doubt as to whether or not something we are purported to have said could possibly have been heard either directly or indirectly by an unintended listener.
 “[…] Canon 3. Confidentiality: Privileged or confidential information acquired in the course of interpreting or preparing a translation shall not be disclosed by the interpreter without authorization.” Code of Ethics and Professional Responsibilities (National Association of Judiciary Interpreters and Translators), www.najit.org/about/NAJITCode ofEthicsFINAL.pdf. “[…] C. I will safeguard the interests of my clients as my own and divulge no confidential information.” Former Code of Professional Conduct and Business Practices (American Translators Association), www.atanet.org/cer tification/online_ethics_code.php.
 The Professional Standards and Ethics for California Court Interpreters dedicates a section to Rule 2.890(d) of the California Rules of Court, “An interpreter must not disclose privileged communications between counsel and client to any person.” www.court info.ca.gov/rules/index.cfm?title =two&linkid=rule2_890.
Does this post look familiar to you?
This is because it was originally published in the 2011 Winter issue of The Interpreters Voice, the official publication of the Interpreters Division prior to 2014. It was also featured in the May 2011 issue of The ATA Chronicle. So much relevant, valuable and useful information can be found in those newsletters! Enjoy!
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