LECTURE 1

CLIENT INTERVIEW
1) The purpose and scope of client
interviews
(a) To form an advocate-client relationship.
(b) To learn the client’s goals.
(c) To learn as much as the client knows about the
facts of the issue.
(d) To reduce the client’s anxiety without being
unrealistic.
2)How to conduct a client interview:
(a) Preparation
Some form of communication before the interview.
 This may be curtailed if the client is already in custody
in case of a criminal case, or he needs an immediate
remedy to safeguard their interest as in the case of an
injunction
 This may be in the form of a simple phone call or a
short visit with the client.
 The purpose is to get a rough outline of what the case
involves and allow the advocate to prepare for a
substantive interview
Most people don’t generally like advocates, and only
come to them because no one else can help them
 The advocate must therefore make a conscious
decision to be as forthcoming, honest and likeable as
possible
• He should think of the case and gather all the
information that he can based on the preliminary
information, so as to be able to give the client a clear
and coherent picture of the case
He should also prepare such information as fees and other
costs that may be incidental to the case and be ready to
discuss this at the very onset so that the client knows that
he/she is getting into
It may also be useful at this stage to examine any prejudices
or biases that the advocate may have which may have an
impact on how he handles the case.
How strongly the advocate feels about any biases/prejudices
will help him decide whether or not to take the case.
It would also be prudent for the advocate to reflect on
what the client expects from him. In this regard it is
useful to think of the case from the client’s point.

Regardless of the feelings of the advocate has towards

the client’s case, the advocate should let the client know
that they will do their best to champion their cause and
get them the best possible outcome given the facts of
the case.
The initial communication with the client may also
serve to give you an idea of the education, legal
knowledge and sophistication of the client.

This will then help the advocate identify the best way of
communicating with the client.
The advocate should also purpose to be positive in his
attitude/approach to the client.

This does not mean that he be overly optimistic and

mislead the client about the possible outcome.

It simply means that he be prepared to put the best spin

on the information provided and the facts that he will
receive from the client.
After forming an initial opinion of the case, the
advocate should then decide what basic information he
needs to get from the client.

The advocate can also ask the client to bring any

documents that he deems from his initial perception to
be relevant to the case e.g. title documents in a
conveyance transaction.
Once the advocate has identified what he will need for
the interview, he proceeds to set down a date for the
same.

It is important to stick to the date and time that is agreed
on with the client and also not to schedule any other
things at the same time.

This will enable him/her to give enough time to the client

and his case and will also go a long way in making the
client feel that his case is important to you
(b) Commencing the interview
The advocate should take time to make the client feel
comfortable before the interview starts.

He should bear in mind that in addition to people

disliking advocates, they find them and their offices
intimidating.

If possible, the advocate should personally meet them

at the reception and walk them into their office or
conference room, whichever is preferable.
Do not take your client into your office if you have an
“ego wall”- a wall that is adorned with your
achievements, photos of you with celebrities or
newspaper clippings of your success story at the first
meeting.

Do not let the clients see the ego wall before they have
seen you and thus had a chance to form an impression
independent of your achievements.
Introduce yourself to the client. You may also engage is
some informal talk so as to break the ice.
Make sure that the room is comfortable for both of you
and that it has a writing area if you plan to take notes.
You can offer the client some refreshment as a way of
putting them at ease and making them feel even more
comfortable at your office.
The way you receive your client says a lot to them
about how you will handle their matter.
The advocate should also prepare to be uninterrupted.
He can ask the secretary to ensure that this happens
e.g. ask her to hold his calls.
3) Information gathering
This is the most important aspect of the client
interview, and it is the type of information you get and
how you go about gathering it that counts.
The best way to get information is to let the client tell
the story in his own words.

Encourage him to tell the story by letting him know

that the rules of confidentiality extend to the initial
consultation, regardless of whether the client decides to
engage your services.
When they start to tell their story, listen without
interrupting.

Employ active listening skills such as nodding and making

eye-contact to let them know that they have your attention.
You can make notes about what they are saying and mark
the issues that need clarification.

Do not interrupt the client unless it is absolutely necessary.

Let them also tell you what they are hoping to get from you.
Once they have explained their situation, summarize
the story that they have told in light of the relevant facts
to ascertain that you understood them correctly.

Seek clarification on anything that did not come out

clearly.
When seeking clarification, avoid judgmental cross-
examination.
Confronting the client with the holes in his story will
come later, when you are preparing the client for trial.
Do not patronize him; neither should you be arrogant.
At this stage, the advocate should make room for
vagueness, memory lapses and lies.
These are the natural responses from clients who think
that they must convince the advocate of their
saintliness.

However, in the interests of getting accurate

information, ensure that you engage openly with your
client and encourage them to be as forthcoming as
possible
Go through the list that you made in preparation for the
interview and make sure that you have got the basic
information from your client that you need for the case.

Address the client on your assessment of their case. At

this point, you need to maintain eye contact so that they
know that you are listening to them and that what you
have to say is important.
Do not speak over their head; avoid legal jargon and
take time to explain what is happening to the client.
Go over the elements of the case with your client and
bring out the legal issues that arise.
If they have not brought any documents, ask them for
documents which can support their case.

If the client is charged with a crime, try to bring out

possible defenses by asking questions that will bring out
witness or alibi information.
You can also find out whether they have potential
character witnesses.
The information that you gather can also help you
identify whether or not there are any possibly conflicts
of interest arising or whether what the client is asking
for is illegal or unethical.

It is important to let them know that privilege does not

cover instances when they are contemplating a criminal
act.
From the information you gather from their story and
by asking questions, develop a case strategy.

However, be careful to identify the problem, fully

investigate and strategize before you give firm
dispositional advice.

If you need more time to clarify the law and to consult,
let them know and schedule another meeting where
you can advise them more authoritatively.
You can also at this point decide that you do not want to
take the case.

If you have doubts as to whether you can function

effectively possibly because of conflict of interest, lack of
sufficient practice in the particular area of law that the
case relates to or some other sufficient reason.
It could also be that you can tell at the initial interview
that the client is walking trouble and that you do not
want to undertake representation.
You can decline the case orally and by letter.
If you decline because the case does not fall within your
area of expertise, you can recommend another advocate
that would be suitable

If you continue with the case, let them know the best
and worst case scenario based on your experiences.

Establish trust with the client and treat him with respect.
How you speak to the client is an indication of how you
will represent them.
Discuss the fees with the client.
Clients do not like to be ambushed with legal fees grossly
in excess of what they thought they would be paying.
Let them know what you plan to do and how much it is
likely to cost them.
Explain to them how you calculate your fees and agree
with them on how the same will be paid.

If possible, sign a fee agreement and secure a deposit on

your legal fees.
(c) Closing
Explain to the client what you plan to do based on the
strategy that you have come up with, what steps they
have to take in that regard e.g. sign affidavits, deposit
money for court fees etc.
You can then arrange another meeting to explain the
progress that you have made.

Studies show clients are impressed with advocates who

put extra effort, provide extra information and who
consistently keep in touch.
Make a point of giving your best to the client’s case and
keeping them appraised on the status of their case.
3) Questions in a client interview
(a) What questions to ask the client
When preparing for an interview, a advocate has to
consider his information needs. To achieve this, the
following need to be asked.

• Personal information: Name, address, telephone

numbers, family ties, work, age, nationality, income
& health.
• Other parties concerned: Basic personal details,
advocate instructed (if any), connection with client
(if any).
• Witnesses (if relevant): Basic personal details,
witness to what and for whom, connection with
client.

• The events that took place: Dates, times, place(s),

people involved, the cause and course of events,
people affected, property affected, incident which
precipitated the visit to the advocate.

• What the client wants: Identify the main problem,

desired outcome, difficulties in achieving outcome,
people to be affected by outcome.
• Previous advice and assistance offered to the client
on the same subject matter:

• Anyone else consulted and details of consultant; the

advice given, action taken, effects of the action.

• Existing legal proceedings: Nature of proceedings,

parties; stage of process; past or future hearing
dates.
 Based on the above information needs, the advocate must be sure to explore
the following questions with the client:
(i) The raw facts and the client’s source of knowledge
(ii) All details relevant to the problem.
(iii) Any questions required to prevent:
(a) Accepting a client who creates a conflict of interest.
(b) Missing the deadlines espoused in the statute limiting actions.
(c) Not taking emergency actions to protect a client threatened by
immediate harm.
(iv) All documentation relevant to the problem.
(v) Questions as to what the argument of the opposing party would be in a
court dispute.
(vi) Exhaustive questions of evidence in court disputes.
(vii) An evaluation of the client’s value as a witness in court in court disputes.
(viii) In transactional interviews, the status of the transaction.
(ix) The parties’ interests in a transactional interview.
(x) Whether the client has talked to another advocate about the problem in
issue.
In asking the above questions, the advocate
must have the following in mind:

 1. Look at the matter in the client’s

perspective that is empathize with the client.
2. Maintain advocate-client
confidentiality.
3. Set the table and layout the approach to
be taken in helping the client.
(b) Organizing and formulating
the questions
In formulating the questions above, the
advocate should organize the questions
topically, and ask the questions carefully as
these will determine how the questions are
answered.
4) Special problems in client interviews
(a) Ethics in client interviews
when the client wants the advocate to assist in falsifying
evidence and perpetrating illegalities so as to succeed in
the case, the advocate should refrain from such
requests/orders.

The best approach for the advocate is to interview the

client and explain the law since falsifying testimony
amounts to the offence of perjury.
(b) Handling private or embarrassing
material
In handling embarrassing or private material, the
advocate should give the client time to appreciate
that he/she is a person of discretion who can be
entrusted by the kind of information that the
client might not event be willing to tell his/her
friends about.
(c) Handling possible client fabrication
The main cause of fabrication is by fundamental
manipulation by the client.
Therefore, the advocate should explain to the client that
it is in the client’s interest to tell him the truth.
To this end, the advocate should gain the confidence of
the client by stressing to the client his duty of
confidentiality to the client, and the privileges of the
advocate-client communication.
In doing this, the advocate will obtain accurate
information that is valuable to any proceeding, be it
litigation or alternative dispute resolution.
(d) Handling a client who wants instant
prediction of a case
This problem arises out of the clients need for
assurance that the case has chances of success.
The advocate can, therefore, explain to the client
what work he/she will do, what issues the advocate
will research on and the facts that advocate needs
to investigate.
5) Some types of clients and possible
practical ways of how to deal with them in
a client interview
(a) The difficult client
The cab-rank rule provides that advocates should
make legal services available to the public in an
efficient and convenient way that commands
respect and confidence and is compatible with the
integrity and independence of the profession
without discrimination, including to difficult
clients
At some point in an advocate’s career, he or she
has to deal with difficult clients.
Clients may be difficult for any number of reasons:
they may have unique behavioral traits that are
exacerbated by their legal matter; others may have
mental health issues.
The fact that a client is difficult should not
generally deter the advocate from representing the
client.
Managing difficult clients, however,
presents numerous challenges.
Advocates should be alert to indicators that
a prospective client may be difficult and take
steps to ensure that the “difficult” advocate-
client relationship is effectively managed.
(b) Identifying the difficult client
The following are some indicators that suggest the
prospective client may pose challenges for the
advocate:
(a) Previous advocates: This should be an
interrogation on the number advocates the client
has had in the past on the same matter,
outstanding accounts or unpaid accounts, any
unjustifiable criticism of the advocate,
description of the previous advocate as
demanding; wanting calls or letters returned
promptly and client not willing to oblige etc.
(b) Litigation history: This should inquire
whether the matter has been litigated for years
and has been very contentious, whether the client is
presently representing himself or herself, whether the
client will not tell you the reason why his or her
previous advocate got off the record and he is also not
keen on you getting in touch with the previous
advocate on record regarding his case and the level of
the client’s knowledge of the case and court process.
(c) Personality traits and behavior: This is done to
find out personality type of the client, the client’s
feeling about the importance of the case, the client’s
use of a lot of the advocate’s time and that of his/her
staff.
It also includes the client’s low expectations about the
outcome of the matter, time it takes and unrealistic
costs and his continuous failure to provide
instructions.
On behavior, it includes whether the client is verbally
abusive to the advocate and his/her staff or whether
the client writes abusive letters to the advocate.
(d) Communication in the case
This provides indicators as to whether the
documentation/orders that the client provides are
different from the information provided over the
telephone and the advocate has a difficulty
understanding the client’s reason(s) for the difference.
In addition, it could be that the client is not clear or
coherent in his instructions.
A difficult client could also fail to respond to
correspondence.
(e) Client’s ability to pay for services rendered by
advocate
· A difficult client might ask for concessions even when
they have the ability to pay.
· The client could also plead with and beg the advocate
to stay on even though there are difficulties in the
relationship.
· The client might also indicate directly or indirectly to
the advocate that he / she will not testify at the trial.
· It might also become apparent to the advocate that
the client will not or that there is likelihood that
he/she will not pay fees.
(c) Managing the difficult client
(a) The advocate should explain his/her role and set the
boundaries early on in the retainer:
The advocate’s role is to analyze a given situation and
offer a solution to the problem presented, or a means
of achieving the goal the client has presented.
(b) The advocate should document everything he/she possibly
can, including telephone calls, voice mail messages and e-mail
messages. The advocate should have the client’s instructions
in writing as confirmed by the client (also in writing).
It is also necessary to include, in writing, the possible
consequences of various courses of action the client may be
contemplating.
If the advocate deals with this client or their work
electronically, save messages and instructions in your usual
way as part of the permanent record of the file (which may be
electronic or on paper).
It may also be wise to discuss the advice the advocate gives this
client with a colleague, including discussing the fears the
advocate has about the client.
(c) The advocate should recommend counseling for
the client, if possible, so as to place the client in a
state of mind to discuss the matter soberly,
realistically and reasonably.
(d) The advocate should set realistic expectations for
his/her client early on in the case.
(e) The advocate should manage needs and
expectations of the client, about service, timing,
results and costs efficiently.
(f) The advocate should discuss the client’s difficulties with his/her
staff and include his/her staff in an action plan for the client:
• The advocate must ensure the staff understands the risks of acting
for a difficult client, so they can behave in ways that minimize
those risks.
• Usually, the staff will easily be able to identify the difficult client.
• The advocate should make sure the staff is dealing with this client
the same way that the advocate is, especially in terms of
documenting contacts, instructions or information.
(g) The advocate should ensure that the client understands the
importance of openness and honesty in the advocate-client
relationship.
(h) In handling the difficult client, the advocate must be calm,
patient and clear.
6) Client Counseling
(a) The purpose and scope of
client counseling
There is always a real temptation and a tendency
in client counseling to make judgments and give
orders, and a tendency in clients to depend on
their legal counselors for judgment and direction.
(b) Purpose of counseling
Every client has a particular and specialized
counseling need. However, there are several - common
and recurrent - counseling problems that the advocate
will encounter in the present and future practice.
To avoid unethical practice, it must not escape the
notice of an advocate that the main goal of legal
counseling is to help the client decide what to do.
As advocates call it, they counsel with the goal of
“opening up options.”
To achieve this, as an advocate, you should always keep
to the following ethical guidelines:
· The advocate should not lecture to the client and leave
him no room to make choices.
· The advocate should remember that the in most cases,
the client knows what he wants, but needs to decide
what to do.
· The advocate should put his client’s best interests first.
· The advocate should maintain confidentiality at its
core.
With these in mind, you will recon that counseling is
client-centered but not advocate-centered.
The purpose of counseling is to let the client lead but
the advocate opens up options.
The advocate should not decide for the client.
(c) The scope of counseling
An experienced legal counselor uses different
counseling styles as appropriate and sets up a relaxing
and trusting environment early on.
A good legal counselor is honest recognizes and has a
respect for and acceptance of a need to put some
distance between himself/herself and the client.
Before obtaining crucial information from a client, it is
sometimes imperative that an advocate deals with
some underlying issues that may be related to or
isolated from the issue in question.
The question that startles advocates is how far one can
go in dealing with these underlying issues.
How far can one counsel?
To understand the scope of counseling, on needs to
look at the common and practical problems and
challenges in practice.
(d) What if the real problem is not legal?
On occasion, an advocate will encounter a client who
either does not have a true “legal” problem or who has
other overwhelming non-legal problems that must be
addressed.
The stereotypical situation is where a client has a
minor legal problem such as a traffic ticket, or a
dispute with a neighbor, and it is apparent to the
advocate that the “real” underlying problem is that the
client needs professional counseling or therapy.
Another example would be where there is a legal
problem such as a landlord tenant or debt problem
that can be easily addressed legally, but it is apparent
that the underlying issue for the client is substance
abuse or dependence.
In both of these situations, the advocate would be
wise to address any legal problem in the usual manner,
and then to address the underlying problem.
In my view , unless the advocate has a unique
background or specialized training, the appropriate
counseling response is to refer the client for
specialized care by a person or agency that deals with
the particular problem involved.
An advocate’s counseling should stay focused on legal
problems and that clients requiring specialized
counseling should be referred to specialists.
On the other hand, an advocate should look at the
“whole” client and to consider a wide range of options,
including non-legal options.
An example of this would be where an adult child lives
with an elderly parent and there are serious internal
disagreements or family issues.
The legal solutions of an eviction action or partition
action can solve the immediate “legal” problems, but
family counseling or referral to a trained mediator may
be best.
It should be clear to the advocate that the non-legal
issues may be more important to the client than the
purely legal issues.
The decision of the relative importance of legal or
non-legal issues is for the client to determine.
In all cases where a advocate feels there may be
important “non-legal” issues, these issues should be
carefully considered for a clear plan of referral or
counseling developed where appropriate.
An advocate can get into serious difficulty if he or she
tries to counsel outside of his or her experience and
training.
(e) Can an advocate decide for the client in
counseling?
Making important decisions can be difficult for most
human beings.
Having an “expert” make those decisions can
sometimes be easier for the client.
One of the most commonly encountered problems for
advocates in the counseling process is that the client
wants the advocate to make the decision for them.
After all that is what “they are paying the big bucks
for.”
The problem with this approach is that roles are being
reversed and the advocate may be getting himself or
herself into a professional trap.
The core of client counseling is that the client must
make the decisions.
The role of the advocate is to chart out the alternatives
and then make sure the client makes a fully informed
and volitional decision.
(f) Duties to a client when counseling
From the discourse above, it is clear
therefore that in the process of counseling,
an advocate owes a client duty to avoid
professional malpractice.
(i) Duty of care
Where there are underlying issues that are not legal,
an advocate has to be very careful not to mislead the
client.
If the advocate does not have a background training in
counseling, he should not engage in the process but
should instead make a referral where necessary.
This should be done where the problem at hand
requires necessary expertise to deal with prior to
dealing with the legal questions.
However, even where he has background training, he
should let the decision making to the client. If he
makes a decision and the client acts based on it, he is
entirely responsible for the outcome of the action.
(ii) Duty of confidentiality
Confidentiality is at the core of any
counseling process.
A client should be at ease when
giving information knowing that it
will not leak to a third party.
This is an ethical norm that generally prohibits an
advocate from revealing “information relating to
representation of a client,” except in a few
circumstances; that is:
a) Where the information was given and received to
perpetuate a crime or fraud
b) Where the information is needed to prevent
reasonably certain death or serious
bodily harm or to establish a claim or
c) In defence of the advocate in a controversy between the
advocate and the client
d) The duty can also be waived by client perjury as stated
in the case of Hunt v Blackburn (1888).
This duty however applies only where legal advice is
sought from a professional legal adviser in his capacity
as such, when the communications relating to that
purpose made in confidence by the client, from
disclosure by himself or by the legal adviser, except the
protection be waived
In all these, the environment in which the information
is received should be conducive to support a
counseling setting.
This encompasses issues as to the degrees and awards
on the wall, the location of the chairs and desk,
absence of other people in the counseling room, the
tone of counseling etc.
(iii) Client’s best interest
An advocate should always put the best interest of his
client first.
There should be no conflict of interest.
Where there is a conflict, the advocate should
disqualify himself from acting or advising the client.
Similarly, in counseling, the advocate should not only
open options that would be beneficial to him.
One should give both advantages and disadvantages of
the advice.
(iv) Duty to listen
Listening is a virtue that is learnt.
An advocate should be a good listener. The
advocate should not personalize the client’s
story.
Good listening will encourage the client to
give the important information that is
needed by the advocate.
(v) Duty not to decide for the client
Even where a client insists that the advocate to
decide, the advocate must not.
The advocate should elaborately open up options
and let the client decide.
If the advocate decides for a client, he/she may be
setting up himself/herself for a blame in case of an
undesirable outcome.
(g) Forms of client counseling
(a) Transactional counseling: this is the form of counseling
on how to structure deals/transactions (especially
commercial) with other organizations and how to conduct
their affairs so as to minimize the taxes and legal liability of
the organizational and individual clients.
(b) Dispute resolution counseling: This is counseling and
advice on litigation issues, and would include pre-litigation
where the advocate advises the client whether a law suit or
alternative dispute resolution mechanisms are necessary.
Dispute resolution counseling also includes the strategy in
litigation or alternative dispute resolution (whichever is
adopted by the client).