M E M O R A N D U M
To: Mary Boudreau, Program Manager
From: Brent Johnson, General Counsel
Re: Court Interpreters as Investigators
Date: March 22, 2004
May an interpreter ethically accept investigative work with a contract public defender, even if the work subsequently requires testimony in court about the matter investigated?
An interpreter may ethically serve as an investigator and testify in court. However, subsequent interpreting work may be limited.
According to the fact situation that you provided, an interpreter received an opportunity to conduct investigative work on behalf of a contract public defender. The interpreter was subsequently called to testify about the interpreter's work as an investigator. A question arose as to whether the interpreter could testify in court. The answer to this question would then lend itself to resolving the primary question, which is whether an interpreter may engage in investigative work.
A review of the Code of Professional Responsibility for Court Interpreters indicates there isn't an express prohibition against interpreters testifying in court. An express prohibition would be difficult, given the fact that interpreters may be involved in personal litigation for which they might be required to offer testimony. Although the code could perhaps contain a prohibition against testifying in a professional capacity, the code does not contain such a prohibition. The question then is whether the code implicitly prohibits testifying in court.
I do not believe that the code prohibits all testifying, although the code might discourage testifying in some cases. Canon 3 requires interpreters to "be impartial and unbiased" and to "refrain from conduct that may give an appearance of bias." As officers of the court, interpreters have an obligation to remain impartial and to avoid any appearances that they might be aligned with one side or another in litigation. This canon does not implicitly prohibit an interpreter from testifying. However, the language may have implications for the circumstances under which an interpreter could testify. For example, an interpreter who has interpreted for a particular client could not voluntarily act as a character witness for that client in the same proceeding. The interpreter's impartiality would be compromised. In any event, the code does not contain a blanket prohibition against testifying. In light of this conclusion, the next issue is whether interpreters may accept work as investigators.
Canon 3 requires interpreters to "disclose any real or perceived conflict of interest." The comment to Canon 3 states that certain circumstances "create actual or apparent conflicts of interest for interpreters where interpreters should not serve." Among the circumstances listed is when "the interpreter has served in an investigative capacity for any party involved in the case." This section seems to indicate that interpreters are not automatically prohibited from acting as investigators, but when they act as investigators, the work will have implications for future interpreting duties. The interpreter cannot serve in any proceeding in which one of the parties is an individual or entity for which the interpreter has provided investigative services. The conflict of interest is created from having a professional relationship with a party outside of regular interpreting activity.
By acting as an investigator, the interpreter performs a different role for the party that has contracted for the investigative services. As an investigator, the individual is aligned with the party seeking the investigative services. The investigator becomes an advocate for that party. If an interpreter performs investigative services for a contract public defender's office, the interpreter can not interpret in any future cases involving that public defender's office. The same would be true if the interpreter conducted investigative work on behalf of the prosecution. Having aligned with an adversarial party, in the biased role of an investigator, the interpreter could not then serve as an unbiased interpreter in a proceeding involving that party. The code thus does not prohibit an interpreter from becoming an investigator, but the code limits the interpreter's work after that time.
In conclusion, the code does not contain an express prohibition against testifying in court. The code also does not prohibit an interpreter from acting as an investigator. However, the code contains limitations for an interpreter who has acted as an investigator. Having taken sides by performing work for a party, the investigator could never interpret in a proceeding involving that party. Arguably, the code expresses a preference that interpreters not become investigators, because that may limit the pool of available interpreters, but it is not expressly unethical to become an investigator. Please let me know if you have any questions about this.
Addendum (April 20, 2004):
Subsequent to the issuance of this memorandum, there have been discussions about whether interpreters are qualified to be investigators under Utah state law. This issue was not posed in the original opinion request and will not be answered in this opinion. The issue of whether an individual may act as an investigator without becoming licensed is a legal question to be answered by the appropriate licensing entity. Interpreters who might be faced with this question should consult the appropriate office or their own attorney, inasmuch as this office does not provide legal advice to court interpreters. This opinion only addresses the ethical implications of an interpreter who has acted as an investigator.