UNIT 2 Client Counseling:

Structure:

1.1 Introduction

1.2 Objectives

1.3 Meaning of Counseling

1.4 Elements of Counseling

1.5 Precautions

1.6 Effective Conclusion of Counseling

1.7 Lawyer Client Relationship and Ethical Considerations

1.1 Introduction

One of the primary functions of a lawyer is counseling the client. Legal profession like medical

profession is a “helping profession.” As a lawyer, in what way could you help the client?

Traditionally legal counseling was viewed as the lawyer advising the client regarding the client’s

legal problem. In counseling usually the lawyer exercises a great deal of control over the

outcome of counseling. In this whole exercise, the client becomes a passive spectator if not a

mute spectator. This often results in the lawyer taking decisions on behalf of the client. This in

fact had become an acceptable professional practice.

As times change, legal profession also undergoes tremendous change which resulted in the

developing of “client - centered counseling”. Client centered counseling requires that you assist

the client in the way he/she needs rather than you taking any decisions on behalf of the client.
After interviewing the client and gathering sufficient information the lawyer has to counsel the

client. Counseling is all about giving such information which a client would like to know

regarding his legal problem/case. Client may require such information to take some decision

about the course of action he/she may like to take in future. You must understand that the client

approaches you because you have the ability to understand his/her problem.

1.2. Objectives

After reading this unit you should be able to:

ƒ Understand the skills that are required for counseling

ƒ Comprehend the various elements of counseling

ƒ Find out how to build rapport with the client

ƒ Learn various precautions you need to take while counseling

ƒ Discover how to deal with ethical considerations

ƒ Realize the necessity to build professional relationship with the client.

1.3 Meaning of Counseling

Does counseling mean ..

1. Merely giving opinion?

2. Stating what the law is? Or

3. The lawyer deciding what the client needs to do?

Legal counseling means helping the client to decide how to resolve her/his problem. It is the

client’s choice to decide the course of action to resolve the dispute. Lawyer merely helps the
client in reaching a decision. Imagine that you are having severe stomach pain and you visit a

doctor. Doctor after diagnosing your problem suggests that you may require toundergo an

operation. Now ask this question. Whose choice is it to undergo operation? Can a doctor

perform operation if you refuse to undergo operation? Obviously doctor would never perform

operation without the consent of a patient.

Can we apply the same analogy in legal counseling? Of course yes. If it is the client who is

going to decide the future course then what is actually the lawyer’s duty? As the clients are not

in a position to understand the technicalities of law and also lack expertise in law, they seek your

help. As a lawyer your duty is to facilitate the clients informed choice. Therefore, merely stating

what law says is not sufficient. Giving information about the problem faced by the client will

not be enough, counseling means more than that. What more should a lawyer tell to the client?

Lawyer need to assess client goals, expectations and needs and accordingly generate options to

fulfill those expectations and needs.

Please answer the following Self Assessment Questions:

Self Assessment Question 1 Spend 2 minutes

1) What is the meaning of counseling?

2) What is the duty of a lawyer in counseling?

1.4. Elements of Counseling

1.4.1. Assessing clients goals, expectations, and needs:

 Unlike other counseling, in legal counseling, the client may be looking at the lawyer for

various remedies. Therefore, the lawyer need to understand what the client wants. The

lawyer is required to assess client’s goals, expectations and needs. While assessing so,

the lawyer should look at the expectations of the client.

Lawyers also should look at these expectations as whether they are realistic and legal. If

they are illegal or not realistic, then lawyer should inform the clients not only that they

are not realistic but also regarding the consequences of pursuing illegal remedies.

Forewarning the client about not using illegal methods to realize client’s expectations is

also part of the professional obligation of a lawyer.

Please answer the following Self Assessment Questions:

Self Assessment Question 2 Spend 2 minutes

1. In a client counseling lawyer need to identify the expectations, goals and needs

of the client? YES / NO

2. Forewarning the client about use of illegal methods is a part of the professional

obligation of a lawyer : YES / NO

1.4.2. Explaining Alternative Solutions

Once you identify the goals and expectations of your client, you need to enable the client

to reach a decision about the course of action he/she wants to follow for solving his/her

problem. Making the client to choose his/her course of action needs a concentrated effort

from the lawyer. Therefore, you have to explain clearly to the client about the law
 applicable for his/her problem and various alternative solutions that law could offer to

solve such a problem.

Merely explaining alternative methods would not be sufficient. You need to explain the

consequences of each alternative method. In other words you have to explain the pros and

cons of using each method. This would clearly enable the client to choose the course of

action he/she wants to undertake.

The purpose of explaining the alternatives is to empower the client to choose future

course of action. It enhances the client’s autonomy, and improves self-determination.

Developing client’s capacity to choose alternatives squarely lies on you.

1.4.3. Alternatives can be legal and non legal

Taking a particular course of dispute settlement method may have two kinds of

consequences; legal and non-legal. Identifying the possible legal consequences of the

possible alternative methods is within the purview of legal counseling.

But is it the duty of the lawyer to explain non-legal consequences? Of course it is always

better for the lawyer to explain the non-legal consequences such as economic, social and

psychological consequences of alternative methods. Many a times, the client may be

interested more in protecting his reputation, privacy and social status than winning a case

in the court of law.

Therefore, making the client fully aware about socio – economic consequences of dispute

resolution method he/she has decided would enable the client either to proceed with or to
 select another alternative method. While the lawyer explaining non-legal consequences,

to what extent such consequences need to be consider would left to the client. .

The reason for giving such a choice to the client is that the values of the client may be

different from the values of the lawyer. Moreover, the client is in a better position to

understand such non-legal consequences than you because the client knows more than

you. This is particularly so in cases such as sexual offences, offences relating to marriage

and defamation where relation is at stake.

Alternative solutions need not be legal; they can be non-legal. Non legal does not mean

illegal. Non legal means methods not prohibited by existing law. For example

negotiation, outside court settlement by means of mediation etc.

Please answer the following Self Assessment Questions:

Self Assessment Question 3 Spend 2 minutes

1. What is the purpose of explaining the alternative methods to a client?

2. What are the possible consequences of taking a particular course of dispute settlement

method?

1.4.4. Advocate taking decision on behalf of client

As discussed earlier, it is the client and not the lawyer who has to choose the future

course of action. But at times a client may insist that the lawyer takes the decision for

him/her. Though ideally lawyers should enable the client to decide, if the client really

insists the lawyer to take a decision on his/her behalf, lawyer may do so. In such a
 situation how are you going to choose? What standards are you going to apply in such

cases?

You need to put yourself in the position of client and decide what you would have done if

you were the client and facing similar problem. While doing so you need to understand

the client’s values. Even in such a situation you need to explain why you have taken such

a decision and it is always better to inform the client about your decision and take his/her

consent before you actually implement the decision.

Please answer the following Self Assessment Questions:

Self Assessment Question 4 Spend 2 minutes

1. Name two non legal alternatives available to a client in settling disputes?

2. Ideally who should take the decision regarding the course of legal action to be

followed?

1.5. Precautions:

Legal counseling requires meticulous preparation. It involves gathering information,

probing the client for the information, analysis, problem identification, investigation and

thorough research. You are not only facilitating the client to take a decision but enabling

him/her to take the right decision. While counseling you may need to take few

precautions as your relation with the client is a professional relation.

a. Maintain confidentiality:

Same as in interviewing you need to maintain confidentiality about the remedies you

suggested to the client. And confidentiality needs to be maintained about the choice
which the client makes. You are professionally and legally bound not to disclose what

transpired between you and your client. Care need to be taken not to discuss anything

about the client’s problem to any other person/s without the client’s permission.

b. Privacy during counseling:

Confidentiality becomes meaningless if you allow other persons to witness your

counseling session. To avoid such a problem you need to make sure that no one except

you and the client are in the counseling room.

c. Mutual Respect:

While counseling you need to respect the client as much as you wish to be respected by

the client. Mutual respect enables the client to speak without hesitation. You must

respect client’s choice even though you may not like the choice. Your duty is only to

facilitate your client’s informed choice. As was discussed earlier, client’s values and your

values often different.

For example in case of domestic violence against wife, wife’s concerns are different from

your concerns. You may feel that she should file a complaint against the husband and get

him arrested. However, she may be reluctant to do so as that may lead to completely

destroying her relation with her husband, which she thinks would have substantial socio-

economic repercussions.

Even though you are an expert in law, the client has the first hand knowledge of the

problem and it is the client who is going to face the consequences. Therefore, being a

professional, your duty is not only to respect the client but also his/her choice. That does
 not mean that you have to blindly accept the choice of the client. If the client’s choice is

not permissible in law you need to help him by articulating the legal consequences of

choosing such a course of action.

d) Language

When you are counseling the client you need to use simple and plain language.

Particularly when you are explaining the position of law you need to take care to avoid

using legal jargons. Client may feel completely lost when you use legal jargons. Being a

professional, your duty is to make complex things simple and easy to decipher.

Please answer the following Self Assessment Questions:

Self Assessment Question 5 Spend 2 minutes

1. Lawyer should respect the client’s choice YES/ NO

2. ________________enables the client to speak without hesitation

1.6. Effective Conclusion of Counseling Session.

Concluding a counseling session is as important as counseling. Ultimately, your aim is to

satisfy your client. You need to create a belief in the client that you are competent

enough to represent the client or to deal with the problem faced by him/her. To create

such a belief a well prepared conclusion of counseling is must as it would create a trust in

the client that you care for him/her. Before you could end the session with your client,

you need to make sure whether you have gathered all the necessary information and have

addressed all the concerns of your client.

 You should not forget that counseling is an ongoing process. One sitting with the client

may not be sufficient for effective resolution of dispute. Therefore, when you ask your

client to meet you again, you need to check the following things

a. All the documents that are required are collected from the client

b. If more documents are required, did you prepare a list of documents you want from

the client and if the list was handed over to the client?

c. When is the next meeting, where and at what time was decided or not?

d. Did you have the client’s contact information?

e. Did you decide with the client the method of communication?

f. Did you identify mutual obligations?

1.7. Lawyer Client Relationship and Ethical Considerations:

When a client approaches you for a legal help the interaction between you and the client

develops into a relationship. The question is what is the kind of relationship that is to be

developed between you and the client? Answering such a question makes a sense as the answer

you give to the question would decide the way you conduct the counseling. Consider this

dilemma. Who is superior? Is it the lawyer or the client? Could you consider lawyer as superior

because he/she is an expert in law and having better knowledge and skill than the client? Or that

the client is superior because he/she hires the lawyer? If you think that the lawyer is superior

because of his skills and knowledge, consider this example. When you hire a gardener, do you
treat gardener superior than you, merely considering the gardener’s skill and knowledge about

gardening.

If you consider you are superior to gardener because you pay for it, then do you agree that the

client is also superior to the lawyer as the client pays the lawyer? Answering the question as to

what is the relationship between client and lawyer, it is a professional relationship. It is

professional because client is willing to hire the lawyer and the lawyer is willing to take up the

client’s case. In a professional relationship there are no dilemmas about superiority or

inferiority. In a professional relationship no one dominate the other. The relationship is purely

professional.

In a professional relationship both the parties would respect each other. Lawyer offers

professional service and not a personal service. Therefore, while developing professional

relationship with the client, lawyer need to consider all possible ethical considerations that might

affect his professional services.

Professional relation between you and the client would be established once the client is willing to

hire you and you decide to take up his case. While the client approaches you for a legal help you

need to consider about your ability to take up the case. This includes whether you have any

competency in the matter in which the client seeks your help. Further, many times you may have

some kind of interest in the matter in which the client seeks your professional services. In such a

situation you need to assess whether you will be able to assist the client without any bias. If you

have any kind of relation with the opposite party against whom your client wants you to

represent him, you have to consider whether such relation would in any way hamper your

client’s interest.
If the client requests you to use your personal contact with the opposite party to settle a dispute,

is it ethical on your part to use such relation? Is charging fee an ethical problem? Consider the

following examples:

1. If a client is poor and request you take a percent in the outcome of the case rather than

charging a fee would it be legal for the lawyer to charge? It amounts to contract of

champerty and in India such kind of agreements are not legal enforceable.

2. Can you refuse to represent a client because the client is not in a position to pay your fee?

Rule 46 of Bar Council of India states that every advocate within the limits of advocate’s

economic capacity should provide free legal assistance to the indigent clients.

3. Could you charge fee depending upon the financial capacity of the client? Though you

may consider charging less to poor client, charging high just because the client is affluent

is not ethically a sound practice.

What would you do if a client asks you to do something illegal? How do you handle such a

situation? Denying in a curt manner would hamper the relationship with the client. Legally and

ethically you could not accept the client’s request. In such a situation it becomes the duty of the

lawyer to not only inform the client about your decision of not involving in illegal transactions,

but also inform that the client could ask only professional service from you but not a personal

service. To offer personal service you need not be a lawyer. Any person can provide such a

service. Further, you need to explain to the client about the consequences of using illegal

methods and persuade the client not to resort to using any illegal methods.

Ethical issues are usually not very clear where in you could with utmost certainty decide as ‘yes’

or ‘no’. Most importantly, answers to the ethical issues depend on the circumstances of each

situation. Therefore, there are no permanent answers. In fact these considerations often change
due to change of standards in the society as well as profession. To update yourself, you need to

know the contents of the professional code of conduct prescribed by the Bar Council of India.

You need to have a basic understanding about the code of conduct and other legal frame work in

India dealing with professional services that you render to your client.

Please answer the following Self Assessment Questions:

Self Assessment Question 6 Spend 2 minutes

1. What kind of relationship a lawyer develops with the client?

2. In a professional relationship there are no dilemmas about ______________ or

__________________

1.8. Summary

ƒ One of the primary functions of a lawyer is counseling the client.

ƒ Changes in society resulted in need to develop client centered counseling

ƒ Client centered counseling requires assisting the client in the way the client needs.

ƒ Legal counseling means helping the client to decide how to resolve her/his problem.

ƒ Elements of Counseling

1. Lawyer is required to assess the client’s goals, expectations and needs.

2. Generating various alternative solutions that the law could offer to solve such a

problem.

3. Alternative solutions need not be legal; they can be non-legal. Non legal does not

mean illegal.

4. Empowering the client to choose the future course of action.

ƒ Precautions to be taken during Counseling:

a) Maintain confidentiality.

b) Maintain privacy during counseling.

c) Respect the client as much you wish to be respected by the client.

ƒ Lawyer and client relationship is a professional relationship.

• It is professional because client is willing to hire the lawyer and the lawyer is

willing to take up the client’s case.

• In a professional relationship there are no dilemmas about superiority or

inferiority.

ƒ Ethical Considerations

Lawyer may need to consider ethical dilemmas that may occur during the counseling

such as:

• His Ability to take up the case.

• His competency in the matter in which the client seeks your help.

• Lawyer having any interest in the case

• Lawyer having any relation with other party which may hamper the client’s

interest.

• Amount of fee to be charged.

• What if the client’s choice is illegal?

1.9. Terminal Questions

1. What is client centered counseling? What are the obligations of a lawyer in client

centered counseling?

2. What are the Elements of Counseling?

 3. What precautions should a lawyer undertake while counseling?

4. Why is effective conclusion necessary in legal counseling?

5. How to tackle ethical considerations in client counseling?

1.10. Answers and Hints

Self Assessment Questions

1. (i) Helping the client to decide how to resolve her/his problem (ii) facilitate the client’s

informed choice

2. (i) YES (ii) YES

3. (i) to empower the client to choose future course of action (ii) legal and non-legal

consequences

4. (i) Negotiation and Mediation (ii) Client

5. (i) YES (ii) Mutual respect

6. (i) Professional (ii) superiority, inferiority.

Terminal Questions:

1. Refer to Section 1.3 of the unit.

2. Refer to Section 1.4 of the unit.

3. Refer to Section 1.5 of the unit.

4. Refer to Section 1.6 of the unit.

5. Refer to Section 1.7 of the unit.

1.11. References:
1. Robert D. Dinerstein, “Client – Centered Counseling: Reappraisal and Refinement”, 32,

Ariz.L.Rev. (1990)501

2. D.Binder & S. Price, Legal Interviewing and Counseling: A Client – Centered Approach

(1977)

3. V.Nagaraj & Frank Bloch, “Interviewing and Counseling”, in N.R. Madhava Menon

(Ed.), Clinical Legal Education (1998)