Both the Diploma and Professional Competence Courses contain an element of skills training which some toughened academics consider “soft”, being thought of as heavy on mechanics and light on intellectual substance. However, these skills are properly and inextricably linked to black letter law and intellectual legal skills, principally because knowing and thinking like a lawyer shapes the content of advice to a client who may be further represented in litigation or negotiation. Skills courses are not exclusive of legal knowledge and legal reasoning but are taught on the basis that they will be used as a tool to unlock other skills acquired during the degree and diploma courses. The purpose of the mechanical skill courses is to bridge the gap between theory and practice. It is estimated that of the total time that lawyers spend in handling matters and disputes for clients, approximately 45% is devoted to matters directly related to interviewing, counselling and negotiating. The remainder of the time is spent in other areas of legal work, eg research, drafting, attending trials/proofs etc. Accordingly, interviewing, counselling and negotiation constitute the major proportion of client representation.
The client might require a will to be prepared, purchase or sale of a house to be attended to, the incorporation of a new company or partnership. Perhaps the drafting or revising of a contract or compromise agreement will be necessary. He or she may be facing divorce, have been sacked from their job, been charged with a crime. The client may be clutching a writ which has just been served or be suffering from injuries which have recently been sustained. He or she may need your services as a negotiator or spokesman. The client may be concerned about actions that he or she is about to take and whether they are correct both legally and morally. The lawyer, in stepping into this relationship, is not just an “interviewer”; the lawyer is advocate, agent, deal-maker, draftsman, litigator, negotiator, spokesperson or general adviser. The relationship between lawyer and client is an ongoing one where consultation and advice is a developing process. In the United States lawyers are referred to as “counsellors-at-law” – which is a more accurate description of the role of lawyers.
Trainees have been taught to think and talk like lawyers. They have been trained in the language and logic, which is special to lawyers. They have learned that facts are the raw material of the legal problem. The client enters the scene and with whom a relationship requires to be built. The client creates other relations for the lawyer. He is to deal with not only the client but also the client’s adversary, other co-professionals (counsel, accountants, surveyors and so on), partners and others with whom the client has a relationship. In dealing with the client the lawyer has to distinguish between what facts have to be ascertained and what facts have to be discarded. Additionally what the lawyer has learned in applying the law to the client’s circumstances requires the translation into something the client understands. In recent times there has been a sea-change in the attitude of lawyers to clients. This has been brought about by a number of factors including consumerism, market forces and a realisation that the client and lawyer can benefit from shared decision making.
Over the past quarter century academics and practitioners have contributed to a debate on who controls legal representation. One model referred to as the “traditional “approach has the lawyer controlling the relationship. The lawyer adopts an objective stance and uses objective techniques. He considers that certain matters are too complex and uncertain for the lay client to handle and decides how much information a client should be given about a problem. It is the lawyer who decides the exercise of any discretion. The client is passive, supine, follows instructions, trusts the lawyer, asks few questions and makes few requests. On the other hand, the “participatory “ model is one where explicit and extensive disclosure is given pride of place on the assumption that clients are entitled to information as a matter of course. The client is encouraged to seek information actively to help both the client and the lawyer to find the problem in order to accomplish the client’s goal. They share responsibility for decision-making. The lawyer requires to be patient, empathetic and understanding in order to learn the solution to the client’s problem and earn the client’s co-operation. Whilst the lawyer may require to use techniques to educate or perhaps even persuade the client the model involves the client in partnership with the lawyer. Arising out of the identification of these two models a wide-ranging discussion has been generated as to what the nature of the lawyer/client relationship is and following on this discourse essentially three approaches have emerged:
a. The authoritarian model
Where the lawyer gives effective advice, makes objective decisions, considers that the solutions to legal problems are primarily technical and that there is a correct solution to a legal problem. Opponents of this approach consider that this model denies the client the opportunity to make moral choices and may not yield a happy result if it does not meet the client’s goals
b. The client centred model
This involves the lawyer identifying the client’s problems from the client’s perspective. The lawyer involves the client in the process of exploring solutions and looks at the consequences to the client only of each option. Opponents of this approach consider that a solution based on the client’s interests, excluding other people’s interests, is wrong and that lawyers may fail to give clients general practical advice and moral guidance.
c. The collaborative model
This is where the lawyer and client work in partnership. This model allows clients to control the ultimate decision but gives the lawyer a significant role in structuring the process that leads to a good decision and result. The lawyer here adopts a role of dispensing “wisdom” which has been defined as the ability to combine qualities of sympathy and detachment on which sound judgement depends.
Some seventeen countries now participate in the English speaking Client Counselling Competition. Judges in the Competition (who are typically practitioners, academics, counsellors, former clients) look for evidence in an interview scenario of the following elements of an interview and which should act as a standard for all good interviews:
1. The creation of an effective professional relationship
The lawyer should at the end of the first interview establish at least the beginning of an effective relationship and working atmosphere and set out in the interview methods of contact in a courteous and professional manner. The success or failure of a lawyer/client interview can be affected by lack of privacy, distracting noise, bad lighting, lack of comfort and interruptions. In some cases it is a forlorn hope but desks should not be piled high with files and papers which, apart from anything else, indicates that the lawyer is extremely untidy (he may very well be, but should not advertise the fact!). There is also the danger of breaching another client’s confidence if there are papers strewn about the desk. There is an element of what psychologists call “impression management” about the lawyer/client relationship. There is, notwithstanding, or indeed because of, televisions lawyers a mystique surrounding the law and lawyers. Clients do expect a degree of formality and acting the part is an important aspect of fulfilling expectations; confidence is important in any relationship but in the law it is critical because significant aspects of human security, such as liberty, property, solvency are at stake. In creating rapport the lawyer requires to be sensitive to the client’s feelings and concerns.
2. Obtaining information
The lawyer should draw out relevant information about the problem from the client so that he develops a complete and reliable description of the problem. In the diploma course students learn about the various types of question including open questions, closed questions, funnelling questions etc., each serving a purposes in eliciting information and responses from the client. They should be able to assess which types of question are appropriate during each phase of the interview. In obtaining a chronological overview the lawyer is likely to use open, checking and reflecting questions. In concluding the interview the lawyer is more likely to use closed, narrowing, leading and hypothetical questions.
3. Learning the client’s goals and needs
The lawyer should find out what the client’s goals and expectations are. The lawyer may require to modify or develop them and give attention when doing so to the emotional aspects of the problem. What the client wants and what the lawyer thinks the client ought to want are entirely different matters. What the client wants is important, although it may not be realistic. It cannot be assumed that because a client has been injured he/she wants money or, having been excluded from the matrimonial home wishes a divorce. There may be a dispute with another business with which the client wishes an ongoing relationship. That would be handled in an entirely different way than if the client were not interested in maintaining an on-going relationship. Clients may be niggardly with information or alternatively they may want to talk and sometimes do so incessantly, but they may not be communicating. The barriers to communication may be threats to the client’s self esteem, embarrassment, not wishing to be judged or that a full explanation may threaten their case. Interviewing skills allow the lawyer to cut through what the client thinks will please the lawyer to get to the negative or contradictory facts.
4. Problem Analysis
The lawyer should analyse the client’s problem with creativity and with both legal and non-legal perspectives and should result in a clear and useful formulation of the problem. Once the client’s story has been outlined the lawyer is in a position to develop theories of the case and to question the client’s strategy. The lawyer is then in a position to identify legal and non-legal issues of concern to the client, select those which require further clarification and prepare a strategy for the remainder of the interview. At this stage the lawyer should summarise the facts back to the client in order to test for lacunae. It is then that the lawyer brings his knowledge of the law to work on the facts and the issues. These may differ from the client’s concerns. For example the client may simply want to get money but the lawyer will have identified the issue as to the client’s entitlement to obtain damages for negligence and will have then identified the sub-issues as to what is provable and how to quantify the amount
5. Developing reasoned courses of action
In partnership with the client the lawyer should develop a set of potentially effective and feasible courses of action both legal and non-legal and should develop with the client an appropriate balance in dealing with the legal and emotional needs of the client and assist the client in understanding the problem and the alternative solutions and in making an informed choice taking into account not only the legal factors but the economic, social and psychological consequences. It may be that prior to the interview the client had assumed that litigation was inevitable. This expectation may alter as a result of an explanation of alternative courses of action such as negotiation, mediation or arbitration. Pivotal in this exercise is a discussion with the client on the nature of the option, the costs involved (emotional and financial), time for resolution, who will be involved, the client’s attitude to each option and so on.
6. Legal analysis and giving advice
This should be both accurate and appropriate to the situation and its context. The lawyer has built rapport with the client, has engaged in a fact gathering exercise, has used skills in listening, attending, questioning and probing, and has canvassed options. Advising is the next stage and whilst a part of the interview process is, of course, quite distinct. The process of legal and problem analysis is not strictly linear. The lawyer is unable to identify what the issues are and which facts are relevant unless he knows and considers the applicable law. The lawyer will not know what the law is until he knows the facts. It is like a sphere of information from which the lawyer plucks the relevant facts and the applicable law. Advice should concentrate on the legal and non-legal alternatives and their respective consequences. For example, the effect of a divorce in relation to the parties being able to re-house themselves or the effect on children who may have to move schools as a result. There may be a non-legal agency that will assist in the resolution of a matrimonial dispute, e.g. counsellor, mediation services, family therapy, alcoholics anonymous. As a lawyer non-legal solutions cannot be avoided and lawyers must take a much more holistic approach to a client’s problem.
7. Concluding the interview
The lawyer should conclude the interview leaving the client with a feeling of reasonable confidence and understanding, appropriate reassurance and a clear sense of specific expectations and mutual obligations to follow. There has to be confirmed with the client the steps that the lawyer will take, the steps the client will take, the time frame of each, who will initiate the next communication and the timing and means of that communication. Thereafter a confirmation letter should be sent to the client which should include a summary of the facts, explanation of any deficiencies and confirmation of the preliminary advice given and incorporating fee scales all and the basis upon which representation will be given.
During the course of an interview the lawyer must be aware of, or clarify and respond to, any moral or ethical issues which may arise without exercising any value judgement. The relationship between the lawyer and client is based on trust and this, of course, means the lawyer must not only act for the benefit of his or her clients but also must not act contrary to the interests of the client and must not benefit at the client’s expense – save for receiving proper fees. Issues such as confidentiality, privilege, conflict of interest should be uppermost in the lawyer’s mind.
There are complex dynamics within the course of an interview. It is not a simple process of asking a question, receiving an answer and writing it down. Many a lawyer has been caught out in a negotiation or a proof as a result of his failure and incompetence during the interviewing process. The value of the elements of the interview cannot be underestimated. The client provides the link between the facts and the law and it is the lawyer’s job to ensure that the appropriate and relevant connections are made and which will hopefully provide the client with an acceptable solution.
Michael Graham is Director – Business Law at MacRoberts, Solicitors, Glasgow. He is a part time lecturer and senior tutor both on the Diploma and Professional Practice Courses at the Glasgow Graduate School of Law and is a member of the Law Society’s Advisory Committee on the the Test of Professional Competence. He is Chairman (Scotland) of the International Client Counselling Competition
In this issue
- The future of conveyancing
- Don’t underestimate the value of people skills
- Lawseal promises secure electronic communication
- Pragmatic approach in going to proof
- Creating the most positive relationships
- Website reviews
- Nothing but the net
- Technology to the rescue?
- In practice
- Plain speaking
- Book reviews