IMPORTANCE OF CLEINT

COUNSELLING

SUBMITTED TO : MR. MANOJ KUMAR SIR

SUBMITTED BY SARA PARVEEN

SEMESTER VI

ROLL NO 130

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR

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 TABLE OF CONTENTS

1. Acknowledgement .....03
2. Research Methodology..04
3. Introduction06
4. Objectives...07
5. Counselling Functions....08
6. Initial and Subsequent Interviewing11
7. Conclusion .....18
8. Bibliography...19

ACKNOWLEDGEMENT

At the outset, I would like to express my heartfelt gratitude and thank my teacher,

Mr. Manoj Kumar Sir for putting his trust in me and giving me a project topic like

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this and for having the faith in me to deliver it to the best. Sir, thank you for an

opportunity to help me grow.

My gratitude also goes out to the staff and administration of HNLU for the

infrastructure in the form of our library and IT Lab that was a source of great help

for the completion of this project.

Sara Parveen

(Semester Six)

RESEARCH METHODOLOGY

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This Doctrinal research is descriptive and analytical in nature. Secondary and

Electronic resources have been largely used to gather information and data about

the topic.

Books and other reference as guided by Faculty have been primarily helpful in

giving this project a firm structure. Websites, dictionaries and articles have also

been referred.

Footnotes have been provided wherever needed, to acknowledge the source.

INTRODUCTION

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Professional Legal Education should necessarily focus on the lawyering skills. Client counselling

is a vital skill in which the students of law should be trained. One of the significant functions of a

lawyer is to advise the people who seek assistance in knowing the legal implications of their

actions. The lawyer is looked upon to facilitate decision making in certain critical legal matters.

This function of the lawyer influencing and facilitating decisions is called counselling. Bar

Council of India, the highest professional body of lawyers, has a key role in Professional Legal

Education.1 It has drawn up a detailed scheme on practical training consisting of professional

ethics, barbench relations, contempt of court, moot court, pre-trial procedures, negotiations,

interviewing and counselling, drafting of conveyances and pleadings, legal aid, public interest

lawyering etc.1

Definition: Legal Counseling is the process of helping a client to make a decision

As part of that process, the lawyer may give her opinion about the matter and

may draw on moral, social, economic and other considerations in so advising. 2

The word 'Counsel' has its origin in the Latin word 'consilium' which means advice.3According

to Blacks' Law Dictionary, counsel means advice and assistance given by one person to another

in regard to a legal matter, proposed line of conduct, claim or contention. As a matter of fact

lawyers are also legal counsels. Counsellor is an attorney; lawyer; member of the legal

1 http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf

2 http://www.law.indiana.edu/instruction/profession/2010/doc/intro_counseling.pdf

3 Oxford Reference Dictionary, Oxford University Press, 2003

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profession who gives legal advice and handles the legal affairs of client, including if necessary

appearing on his or her behalf in civil, criminal or administrative action and proceedings.4

OBJECTIVES

To study about client counselling

To know about the processes involved in client counselling

4 West Publishing Company

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 COUNSELLING FUNCTIONS

The process of counselling has two functions:

1. To help the person talk about, explore and understand his or her thoughts and feelings and

workout that what he or she might do before taking action.

2. To help the person decide on his or her own solutions.5

Lawyers counsel the client in deciding how his problem can be sorted out under the laws. Legal

counselling is the process by which a lawyer communicates advice to a client.6

A client is a person, natural or legal who approaches the lawyer for legal assistance. The word

client has its roots in the Latin word 'clients'. Client is a person using the services of a

professional person or organization 7. Counselling is the activity in which one person seeks and

in one way or another, pays for help from another person. It is characterized by need on one side

of the relationship, by willingness to help on the other, and by and inter personal contract based

on mutual attraction.8Counselling as a professional activity will involve competence and

expertise in addition to mere willingness. Legal counselling is fairly considered a 'service' under

5 Mike Megranathan, Counselling in Dorothy M. Stewart Management Skills, Infinity

Books, Delhi 2003. p99

6 V. Nagaraj and Frank Block, Interviewing and Counselling in N,.R. Madhava Menon,
Clinical Legal Education, Eastern Book Co. Lucknow, 2003

7 supra n.3

8 Thomas L. Shaffer, Legal Interviewing and Counselling, West Publishing Company,

1976

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the Consumer Protection Act, 1986 making the lawyer accountable for deficiency.9 In a

counselling relationship the client has to open himself to help and the lawyer has to protect the

best interests of his client. Legal interviewing and counselling is what lawyers do in an office

where they see clients one or two at a time, with the door closed.10

Lawyers elicit information from their clients, which information forms the basis for their advice.

Legal counselling can be for litigation or for planning. Clients may seek advice as to proper legal

course of action before Courts or as to estate, tax or business planning.

CLIENT INTERVIEWING

In a lawyer - client meeting, the client opens up and talks his problem and concerns and

expresses his expectations. The lawyer listens, notes down and questions the client for necessary

information. There is a sharing of information, views and needs through verbal communication.

This communication which is the life blood for effective counseling is called 'interviewing'.

Client interviewing is a prominent part of legal profession. Giving options, suggesting

alternatives, effective client representation, drafting of documents, pre-trial preparations etc. are

all dependent on this client interviewing.11

PURPOSE OF CLIENT INTERVIEWING

9 For further reading See, Consumer Protection Act, 1986; Avtar Singh, Law of
Consumer Protection, Eastern Book Co; Indian Law Institute, A Treatise on Consumer
Protection Laws; D.N. Saraf, Law of Consumer Protection in India, Tripathi.

10 Thomas L. Shaffer, Supra n.7

11 http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf

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The lawyers require to know the factual dimensions of their client's situation.Factual matrices

are the conditions for laws to operate. "Neat packages of fact are apredicate for professional

activity by lawyers".12 One fundamental purpose ofinterviewing is to know the facts story. The

responsibility of gathering the facts is thatof the lawyer. The fact that the client has approached a

lawyer itself conveys that he orshe has identified some legal problems. But the client may not

know what matters, facts,instances and documents are significant and relevant. The lawyer will

have to extract thenecessary information and identify the legally sensitive facts. Expression of

feelings likedisillusionment, disgustion, pain etc can also constitute important facts.

Identification ofwitnesses, documents etc, are also done by interviewing.

The second significant purpose of interviewing is building the professional relationship with the

client. The lawyer shall ensure to the client that his interests will be well taken care of and he and

his feelings will be genuinely respected. Mutual trust is the characteristic feature of the

professional relationship. If the client does not trust he may not divulge certain secrets and may

find uneasy to discuss certain delicate matters. It is pertinent to note that the duty to maintain

confidentiality is implicit in the lawyers duty to give priority to the interests of the client. Bar

Council standards of professional conduct and etiquette mandates that the advocates shall not

directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian

Evidence Act.13

In establishing the professional relationship the lawyer will be necessarily interested in knowing

certain personal details about the client, his background, credibility etc. If the lawyer has certain

12 Id

13 Bar Council Standards of Professional Conduct and Etiquettes Rule 17

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reasons to disbelieve the client he shall openly discuss with the client the factors inhibiting the

trust relationship. Finally it is the preference of the lawyers to decide whether to take up the case

of the client.14 In the professional relationship mutual obligations will be discussed and agreed

upon. One interesting and important aspect is that of fees. Quoting the fees is an art best learnt by

experience. Lawyer shall be guided by his stand at the bar, nature of the case13 and affordability

of the client. Free legal assistance to the needy is a noble duty.15 An Advocate shall not stipulate

for a fee contingent on the results of litigation or agree to share the proceeds thereof.16The third

notable function of interviewing is understanding the expectations of the client. What are the

interests, expectations and concerns of the client? Unless these are understood and seriously

considered, the efforts to satisfy the client will go in vain. It should be remembered that it is the

satisfied client who while advertise for that lawyer.17

INITIAL AND SUBSEQUENT INTERVIEWING

Interviewing the client may be a continuous process as the matter proceeds. There may be cases

of a single interview and counselling. But generally when the client seeks counselling and

assistance in deciding from alternatives available and also representation in the Courts or other

14 supra n.11 Rule 11 reads: an advocate is bound to accept any brief in the courts
or tribunals or before any other authority in or before which he proposes to practice
at a fee consistent with his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

15 Supra n.11 Rule 46

16 Supra n. 11 Rule 20

17 supra n. 11 Rule 36 reads: an advocate shall not solicit work or advertise, either
directly or indirectly.

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means of implementation of the decisions, interview will be an on going process. The first/initial

interviewing shall be carefully attended to. "But the initial interview is essential to cementing the

foundation for the lawyer-client relationship. If the job is poorly done, the foundation will be

unable to support the construction of the complex professional relationship needed to conduct a

long or emotionally difficult case."18The client may be very nervous or skeptical. It may be nerve

wracking for the client. Lawyers shall develop the ability to spot nervousness and the capability

to tackle such clients. An informal friendly enquiry, offering refreshments, changing environment

may be required to make such clients comfortable. The law office shall be properly ventilated

and illuminated. Orderly arrangement and aesthetic look of the office shall be given due

attention. Office atmosphere should keep the clients comfortable. Meetings with clients should

be in privacy where ever desirable otherwise clients will not open up. They shall be assured that

their secrets would be safe in the lawyers hands.

Interviewing Techniques Interviewing is a very purposeful activity and attending to small things

in a meticulous manner can provide fruitful results. Counsellors should be patient and careful

listeners. That the client has approached a particular lawyer shows that he/she trusts the lawyer

and a patient hearing will only enhance the trust. Moreover the client fears that his property, life

or liberty would be at stake and his feeling should be respected. Lawyer should listen with

interest and ensure uninterrupted hearing. Office staff should be instructed accordingly.

Physically responding to what is said, commenting and questioning on certain significant matters

will assure comfort. Lawyer shall mind the manner and tone of their questions. Silences will

have to be tolerated, unwarranted interruption can block important information. An atmosphere

18 Robert M. Bastress and Joseph D. Harbaugh: Interviewing, Counselling and

Negotiating Skills for Effective Representation, Little Brown and Company.

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that encourages expressions of feelings should be ensured. But the lawyer shall be dispassionate

and objective lest his logical, critical and analytical skills will be impaired.19

BEFORE COUNSELLING

Counselling is a professional activity anchored on the special knowledge of the counsellor. The

client in most cases absolutely surrenders his matter to the lawyer and accepts his suggestion in

toto. The lawyer is duty bound to uphold the best interests of his clients by all fair and

honourable means. An advocate shall not do anything whereby he abuses or takes advantage of

the confidence reposed in him by his client. 20There can be disciplinary action by Bar Council for

breach of code of ethics.19 Lawyer shall also bear in mind his accountability under consumer

law and common law,21

The lawyer shall understand the following before counselling a client

- 1. The facts pertaining to the clients' situation

2. Clients' perspectives and expectations

3. Clients' concerns as to costs, consequences and risks

4. Law applicable

5. Considerations of justice, fairness and morality

19 http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf

20 Supra n. 11, Rule 24

21 See Section 35, Advocates Act 196

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6. Bar Council Code of Ethics

During Counselling Lawyer shall act responsibly while communicating legal advice to the client.

Care shall be taken to speak in client's language. A lay man cannot appreciate legal terminology.

It shall be the duty of the lawyer to assist the client in understanding his rights and duties. The

lawyer shall explain all options in the situation with consequences and costs. Assistance in

making choice from available options shall be rendered. No option shall be forced upon the

client. An advocate shall not, at any time, be a party to fomenting of litigation.22The lawyer shall

be objective and honest and explain the weakness of the case as well.

EFFECTIVE COUNSELLING

Effective presentation of a legal opinion/advice depends on several important requirements.

Substantial thoroughness in the knowledge of law and procedure is a must. Logical and critical

thinking will enhance appreciation of the objective dimensions of the client's situation. Good

inter personal skills will help in interviewing the client properly and broadening the information

base. Sharp comprehension skills will be required to appreciate the expectation and concerns of

the client. Liberal education about developments and happenings around is also important. We

have to be alive to the fast changing would around us. Updation of knowledge by keeping

abreast of changes in codified law and of latest decisions of Courts and tribunals is

indispensable. Clarity of thought and good communication skills are essential to send the

message across to the client.

22 Supra n. 11 Rule 18

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LEARNING COUNSELLING SKILLS

Learning to apply law in a given situation can mark the beginning. This will help students to

identify the problem, formulate the issues and seek solution under law. We cannot conceive of a

lawyer who cannot talk. Communication skills can be learnt by interacting in the class room

discussions. Raising questions should be encouraged. The opportunity to answer questions raised

in the classroom can be offered to students with the teacher's concluding remarks. Classroom

presentations on small topics should be compulsory for students. Such presentations should be at

least five for each student in every term. Group discussions and seminars for students will open

more gates for student participation. 5 Counselling can be taught to students by stimulation

exercises. The lawyer's role and the client's role can be enacted for the observation of students on

hypothetical problems. Sufficient pre-planning is required. A variety of problems will have to be

chosen. The students can be given mock counselling exercises where they will interview and

counsel. The students can pick up counselling skills by observing real interviews and counselling

in an advocate's office. This requires cooperation on the part of advocates and also the consent of

the clients. Legal aid clinics and legal aid camps can offer great opportunity to law students in

learning counseling techniques.23

23 http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf

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 CONCLUSION

Client counseling is the essence of the attorney client relationship. In the attorney

client relationship, the client has come to the attorney seeking the benefits of his or

her experience, knowledge, expertise, and practical wisdom to solve some kind of

human problem. In this relationship, the client expects loyalty, understanding,

professionalism, empathy, advocacy, competency, good legal advice, and success.

In return, the attorney expects the client to be truthful, cooperative, to satisfy

certain basic contractual obligations and also hopes for success. Client counseling is

the point where these different expectations intersect. Client counseling is the

process by which the attorney helps the client decide which legal and practical path

is best for the client. The client must make the ultimate decisions, because it is the

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clients life, property or other interests that are at stake. In most situations the

attorneys role is to help furnish alternatives and to help the client to select from

among these alternatives. For client counseling to be effective, there has to be a

mutual sense of confidence and trust. In other words, there must first be an

effective and positive attorney client relationship. The better the attorney client

relationship, the easier it is to professionally counsel the client. Good professional

client counseling makes it easier for a client to make good decisions in his or her

case. Good client counseling also requires open, candid, and effective

communication between attorney and client.

From a purely mechanical viewpoint, the typical clinical case is ready for the

counseling phase when the fact development and legal research phases are more or

less complete. Once all the facts are understood and the law is relatively clear, the

law student and the client can begin a dialogue on how a given legal matter should

be addressed or resolved. In this process, one should be aware that facts and law

are always subject to some change and to differing interpretations. Similarly, the

student should be aware that client counseling is an on-going process that starts

when the client first comes in for an interview and only ends when the

representation is completed. Like other stages in the attorney client relationship,

some cases are easily counseled because the legal course is clear; in other cases

the choices for the client are many and often conflicting. These last cases require

much more counseling. In some cases, preliminary legal or practical advice may

have already been given. Part of the counseling process should include a

reevaluation of any preliminary advice that has been given. In the typical case, the

process of educating the client, defining alternatives, and helping the client make

good case decisions will probably require several meetings and letters. As a general

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proposition, clients may not be ready to make fully informed decisions at an early

stage in their case. Similarly, in a typical case, the law student may not be ready to

give good legal advice until the facts and law are relatively well settled and the

supervising faculty member has been consulted. One reality of the fact or case

development stage is that facts and law may change a bit. As the facts and law in a

case change, legal opinions and advice may also have to change. Hopefully, these

changes in direction are not abrupt or drastic. When these changes are drastic or

abrupt, the law student is well advised to carefully explain the reasons for these

abrupt changes in position. This reality of change as the case develops; helps

explain why many lawyers are cautious or tentative in giving advice or counseling in

the early stages of the case. Finally, legal counseling may occasionally have to be a

hasty process. This is because external factors such as pleading deadlines or other

time-based forces may limit the amount of time available to the attorney to

carefully weigh and deliberate. In certain limited situations, a client may have to

make a critical decision in a very short period of time. In these emergency

situations, the student should make sure that the supervising faculty member is

fully advised and consulted before any definitive legal advice is given. In all cases,

the student and faculty member should develop a separate counseling plan or

program for each client. Counseling, like interviewing, is a process that will require

practice for the student to become more proficient. Like interviewing, good client

counseling is a process that generally requires several meetings and discussions

before the client can decide a particular matter or decide on a course of conduct.

Each case should have a counseling plan. A good counseling plan or program will

focus on the best legal and practical interests of the client and insure that there is

client autonomy in the decision making process.

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 BIBLIOGRAPHY

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 http://www.vpmthane.org/law1/Princ-

Articles/Client_Counseling_for_Tomorrow.pdf
http://www.law.indiana.edu/instruction/profession/2010/doc/intro_counseling.p
df
Robert M. Bastress and Joseph D. Harbaugh: Interviewing, Counselling and
Negotiating Skills for Effective Representation, Little Brown and Company
Bar Council Standards of Professional Conduct and Etiquettes Rule 17
http://www.law.indiana.edu/instruction/profession/2010/doc/intro_counseling.p
df

Mike Megranathan, Counselling in Dorothy M. Stewart Management Skills, Infinity

Books, Delhi 2003. p99

V. Nagaraj and Frank Block, Interviewing and Counselling in N,.R. Madhava Menon,
Clinical Legal Education, Eastern Book Co. Lucknow, 2003

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