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 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 these

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 standpoint.

• Regardless of the feelings of the advocate

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 in
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 what counts is the type of information
you get and how you go about gathering it.
• 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.

• Consider 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) (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
• Some indicators that suggest the prospective client
may pose challenges for the advocate:
(i) 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.
• (ii) 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.
• (iii) 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.
• (iv) 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.
• (v) 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
(i) 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.
(ii) 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.
(iii) 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.

(iv) The advocate should set realistic expectations

for his/her client early on in the case.

(v) The advocate should manage needs and

expectations of the client, about service, timing,
results and costs efficiently.
(vi) 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.
• 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.
(vii) The advocate should ensure that the
client understands the importance of
openness and honesty in the advocate-
client relationship.

(viii) 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

• 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 as
his core.
• With these in mind, you will recall 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 weighs on the advocate’s mind 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.
• 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.
• Exceptions to client confidentiality:
• Where the information,
a) was given and received to perpetuate a crime or
fraud;
b) is needed to prevent certain death or serious
bodily harm or to establish a claim; or
c) is for the defence of the advocate in a
controversy between the advocate and the client
d) Has resulted in a client’s 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
(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.
• 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
should decide for him/her, 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).