Opinion 24-72
May 9, 2024
Digest: (1) When a court interpreter is needed for an off-hours arraignment and the judge determines that an interpreter approved by the Unified Court System is unavailable, it is ethically permissible for the judge to use an independent third-party interpreting service with the consent of the parties or their counsel. If the service requires use of a paid account which is not paid for by the Unified Court System or the municipality, the accountholder’s identity should be disclosed on the record.
(2) The use and selection of any interpreting service raises primarily legal or administrative issues beyond our purview to address.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR part 100, Preamble; 100.0(S); 100.1; 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(7); 101.1; Opinions 20-28; 16-73; 13-131; 09-223; 01-100/01-101; People v Lee, 21 NY3d 176 (2013).
Opinion:
The inquiring town justice has recently been unable to secure an interpreter from the court system’s registry of per diem interpreters for off-hour arraignments that take place in the early morning hours.[1] Accordingly, the judge asks about the ethical permissibility of using either an independent third-party telephonic translation service or a free internet-based translation service at such off-hour arraignments when interpreters on the registry do not answer the phone or are otherwise unavailable. The judge notes that both a state trooper and a defense attorney are present on these occasions.
·
Telephone. The judge indicates that the independent
telephonic translation service requires a paid account. At this time, neither
the court system nor the judge’s municipality have set up an account for the
judge to use. However, state troopers appearing at off-hour arraignments have
offered to make the state police’s account available without charge to
facilitate the arraignment, after the judge has unsuccessfully called dozens of
court-approved interpreters. To access the service, we understand that the
trooper will need to call a toll-free number and provide their badge number and
station information. The judge asks if it is ethically permissible to accept
such an offer.
· Internet. For vehicle and traffic law matters and “minor offenses” at off-hour arraignments, when the judge has been unable to reach a court-approved interpreter, defense counsel has sometimes offered to use a free, text-only internet-based translation application such as Google Translate to facilitate communications with his/her client. The judge likewise asks if this is ethically permissible.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and uphold the judiciary’s integrity, impartiality and independence (see 22 NYCRR 100.1; 100.2[A]; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). A judge must also “be faithful to the law” (22 NYCRR 100.3[B][1]) and “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]).
Because “the position of court interpreter requires both the reality and the appearance of neutrality,” we have advised that a town justice may not permit a town constable to serve as a court interpreter (Opinion 13-131). Indeed, we said it “would surely erode confidence in the judiciary’s impartiality if a member of law enforcement were to provide official court interpreting services in criminal matters” (id.).
Here, however, both proposed alternatives involve an apparently independent third-party translation service. We have previously observed that the role of the judiciary in overseeing criminal proceedings differs from civil matters in its “constitutional dimension” (Opinions 01-100/01-101 [“throughout the law runs the theme of judicial responsibility for guaranteeing the right to counsel on behalf of indigent defendants”]) and that arraignment “is a significant stage in the criminal proceeding when the judge must advise the defendant of his/her rights, issue a securing order, and, in some cases, suspend the defendant’s license to drive” (Opinion 09-223). As the Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR part 100, Preamble), we believe they must not unduly hamper a local court from fulfilling its “obligat[ion] to appoint a court interpreter in all criminal cases when it ‘determines that a party or witness ... is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings’” (People v Lee, 21 NY3d 176, 179 [2013] [citation omitted]).
Accordingly, when a court interpreter is needed at an off-hours arraignment and the judge determines that an interpreter approved by the Unified Court System is unavailable, we conclude it is ethically permissible for the judge in this limited circumstance to use an independent third-party interpreting service, whether telephonic or internet-based, with the consent of the parties or their counsel.[2] If the service requires use of a paid account which is not paid for by the Unified Court System or the municipality, the accountholder’s identity should be disclosed on the record. We note that, in the specific scenario described in the inquiry, it is sufficient if the record reflects the trooper’s offer to access the state police’s account.
Ultimately, however, the use and selection of any particular interpreting service for court proceedings, whether human or software algorithm, raises primarily legal or administrative issues beyond our purview to address (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).
Note on Judicial Independence
We recognize that our advice here effectively allows a local court to accept or permit, in these extremely limited circumstances, what amounts to a gift or favor from law enforcement, i.e., use of the state police’s paid account for telephonic translator services without any charge. Any widespread, ongoing reliance by the local courts on the generosity of the state police to provide translation services at off-hour arraignments could potentially undermine public confidence in the judiciary’s independence and neutrality and/or create an improper impression of alignment with law enforcement (cf. Opinions 16-73 [noting the danger of a “special, favored relationship between the judge and the police department”]; 20-28 [outside employment impermissible where “too closely aligned with law enforcement interests”]). This is, however, a systemic issue far beyond the authority of the inquiring judge to address.
Within any individual local judge’s courtroom, we are persuaded that the need to protect the rights of non-English-speaking defendants who have been brought in for arraignment at times when court-provided interpreters are unavailable justifies the court in accepting or permitting this gift or favor as a matter of judicial ethics, provided that the parties or their counsel consent to use of the service and there is no concealment of the accountholder’s identity.
[1] On its FAQ's on Getting an Interpreter page, the Office of Language Access describes the “rigorous written and oral testing and screening measures” for an interpreter to be added to the registry. Those who fail to maintain professional standards for impartiality, accuracy, and proficiency may be removed (id.).
[2] We see the alternatives discussed here as essentially a stop-gap measure to be used only in the limited circumstances when the Office of Court Administration is unable to fulfill the obligation to provide an interpreter. We trust that OCA will take steps to ensure that translation services are made available to local courts for off-hour arraignments.