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Practical Client Counselling

Shirin Khajuria
7 March 2022 8:42 AM GMT
Practical Client Counselling
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"A customer is the most important visitor on our premises. He is not dependent upon us…. He is not an interruption in our work. He is the purpose of it… We are not doing him a favour by serving him. He is doing us a favour by giving us an opportunity to...

"A customer is the most important visitor on our premises. He is not dependent upon us…. He is not an interruption in our work. He is the purpose of it… We are not doing him a favour by serving him.

He is doing us a favour by giving us an opportunity to do so".

                                                                                                      Mahatma Gandhi

Client Counselling is more an Art than a Science. Though there is legal craftsmanship involved in the profession of law, the human aspect must be kept in mind during client counselling, for every client interaction will be a unique experience, of our own making.

Arguably, the most important aspect of client interaction is our behaviour and demeanour towards him, followed closely by, meeting a client's expectations pragmatically besides as per client etiquettes prescribed by the Law. They are entwined so closely in our interactions, as to sometimes be indecipherable from each other.

What The Client Expects From A Lawyer:

Client counselling starts from the moment of the client's first call and continues till their problems are resolved. Their expectations from you, as a lawyer include:

  1. An appropriate and fitting solution for their problem and not just finishing the case.
  2. Your competence in and knowledge of the area of law that you are being consulted for and that you do not profess knowledge where you have none.
  3. Confidence that when they hand over their worries to you, you will allot appropriate time to the case, prepare well, and present their point of view to the Court/ other side with conviction, and not lose because you have not gone through the case exhaustively.
  4. Your honesty in giving them an unbiased opinion, without false hope. At the same time, you will not make it seem that they have an insurmountable case just to create your own defence in case things go wrong subsequently.
  5. You will keep them informed of the progress in their case rather than them chasing you for updates.
  6. A telephonic or in-person discussion with the client before every hearing to check for updates/ change in circumstances so that arguments may be moulded accordingly.

       For this point, I am reminded of a quote by playwright, George Bernard Shaw "The only man I know who behaves sensibly is my tailor; he takes        my measurements anew each time he sees me. The rest go on with their old measurements and expect me to fit them." -

      A short-written note of your proposed submissions before the hearing may be shown to the client for their comments. This will give them                 confidence that you are ready with the case, and ensure you are never caught unawares in court.

7.   Your fee structure is reasonable in keeping with your experience. Ensure transparency in your financial transactions by spelling out the possible          stages of the legal proceedings, the expenses and fees at each stage, the possible number of hearings and the estimated time taken for                 conclusion of dispute, allowing the client to understand and accept the costs involved.

Here Are Some Fundamentals That Should Be Kept In Mind During Client Interactions:

  1. A client should feel comfortable and relaxed in our presence to be able to tell us their complete legal problem. For without a complete understanding of the issue, we will not be able to assist the client, or the court competently. Our behaviour should denote that we are respectful of them, and their time. These basic courtesies include not keeping a client waiting or making them run behind us for a meeting. Fix a time and place and stick to it. Respect also requires responding to reasonable calls or mails and queries from them, at the earliest possible.
  2. Any filings in the case are to be promptly sent to the client with a cover letter for their records. So also, after the hearing and before the day is over, a communication giving a gist of the arguments made by the advocates for all the parties and any observations made by the Court. (A copy of this letter/email in your file becomes a useful reference for the next date of hearing.) The Order of Court too, is to be sent at the earliest possible.
  3. Once you have accepted the case, and the client is ready to sign the Vakalatnama, it may be a good time to discuss the fee and expense structure. The fee and expense structure should preferably be in writing and a copy kept for your reference to avoid any confusion in future. A lack of clarity on fees can sour the client-advocate relationship.
  4. The Bar Council of India, acting in terms of the powers given to it under the Advocates Act, has, inter-alia, prescribed the etiquettes and duties of advocates towards clients, including guidelines for taking fees and keeping client accounts. It is unethical to charge a contingent fee i.e., fees dependent upon winning the case, as it may result in the advocate indulging in falsehoods to win the case.
  5. The duties towards clients prescribed by the Bar Council include acting with integrity during dealings with client and disclosure of connection with other side and any conflict of interest. We should not take advantage of the confidence reposed in us by a client.

The Five Stages Of Client Counselling:

Client counselling can broadly be segregated into five stages for the sake of convenience, though the lines between them are often blurred:

  • Interviewing the client
  • Analysing the problem and fact sorting
  • Planning how to tackle the issues.
  • Discussing options with the client.
  • Advising and strategizing.

Before we dwell a little more on these, think of how a doctor dealt with you last when you visited them. The way they spoke with you, how comfortable they made you feel, and how you would have liked them to deal with you. Parallels can be drawn from the above as both patients and clients are often anxious and distraught when they seek professional help for a solution to their problems.

a)Effective Interviewing, to elicit relevant and complete information and history on the dispute from the client. This is a crucial stage and will form the basis of final advice/counsel. Its importance cannot be over emphasised. The steps for effective interviewing are:

  • Introduce yourself and present your business card. Take the client's business card, if available.
  • Build a facilitative atmosphere by ensuring all your attention is on and with the client as they speak. Be gentle, as the client maybe nervous, anxious, and maybe even distraught.
  • Listen carefully to the client. With a little patience, and if you listen between the lines, you will start to form a picture of the real issue. (The client may give information that may seem irrelevant to you, however, avoid interruption, merely discard the irrelevant information later, during the final stage when you start building a case.) It is important to not judge the problem instantly.
  • Try not to ask questions during the 'story telling', except to prod a little, where necessary, for more information or clarity.
  • Make a rough 'List of Dates'. I do so with three columns: the date of event, the particulars of the event and a check list of documents, if any, to support the event. The last column can be filled/ verified when papers are taken from the client.
  • Question the client. This is for primarily three reasons.

First, to fill the gaps in the story and get a wholistic picture of the problem. Think what is needed to make your case and to meet the arguments that will invariably be made against your client such as previous correspondence/ agreements/ disputes between the parties.

Second, to ensure that we are not guilty of suppression as Clients, sometimes, tend not to disclose uncomfortable facts. Suppression can result in serious consequences including dismissal of the case by the court.

Third, questions often help in identifying what the client really wants. This helps in planning and advising the client. As an example, a husband wanted a divorce by mutual consent, but the wife was not willing to file it even though there was a letter written by her that she is not interested in living with him anymore. After detailed questioning it was found that since she was working abroad it was not possible for her to come personally for the two motions of divorce in case of mutual consent, but she had no objection to the husband filing a petition on grounds of desertion, to which she filed a reply admitting desertion. This petition was allowed on the 'admission' of wife, without requiring her personal appearance.

  • Take all the papers related to 'the story' scrupulously and meticulously from the client. Take them in a logical manner. Either start with the impugned order and then move to the beginning of the dispute or start with the basic agreement/notice and move right up to the present documents/ order. The List of Dates made earlier in the interviewing process, which had a column for documents, can be of great assistance here. (Documents can also be flagged and clipped together, and those that are do not seem relevant can be filed away in case they are required later.)
  • Keep the Original or Certified copies of documents/Orders in a separate folder after making a photocopy of them for use during drafting. This is to ensure that you always have a clean copy of the original documents for filing in court.
  • Take the Vakalatnama from the Client, and ensure you have all their contact details.

b)Analysing The Problem And Fact Sorting:

Mentally analyse the nature of the problem based on facts gathered and build a logical story. Be circumspect at this stage. Separate the chaff from the grain, and in the process discard any unnecessary or mis-leading information. Analyse the real problem.

The agreement or communications forming the basis of relationship between the parties may be meticulously read and analysed, along with the other documents. Check if there are any binding clauses, such as for arbitration, which will oust litigation or oust certain territorial jurisdictions.

The impugned judgment(s) is to be examined scrupulously to gauge the portion against the client, including if it is partially in favour of the client, so that the challenge is accordingly moulded.

c)Planning:

  • Plan for additional information and research required based on the facts and documents obtained. Some information can only be provided by the Client. However, advocates can obtain information with a little bit of their own research. Information acquired through an RTI is particularly useful in admission or employment matters, and PILs. Research on the web, such as the present employment and financial status of a spouse for a divorce matter can help estimate their genuine net worth. So also, research on the portal of the Ministry of Company Affairs or second level information retrieved through a charted accountant of the annual returns of a company can provide a mine of useful information in company related matters, execution of money decree where the company is not divulging its assets or creditors and a number of other cases.
  • Planning for preventive action. For example, one partner loses money when their partner sells company assets behind their back, without their knowledge. To prevent further loss by sale of the remaining Company assets, an interim injunction can be sought or a change in signatories. Hence, while planning recovery of loss due to cheating or breach of trust, also think about how to prevent future losses.

d)Discussing Options With Client:

Once there is clarity on the problem, different courses / options can be discussed with the client. This can include something as basic as whether a legal notice should be sent, or should a simple claim letter in the name of the client be issued to avoid an escalation of the dispute.

However, before adopting litigation as the only recourse in the case, consider the four Alternate Dispute Resolution (ADR) options as provided for under Section 89 of the Civil Procedure Code, and explore the possibility of effectively using ADR. (Discussed in-depth later.)

If litigation seems to be the most effective option at present, discuss the different types of litigation options available to the client, and together agree on the most effective recourse. This would include, taking into consideration the best forum - whether a writ or a suit is more efficient, or whether multiple simultaneous litigations are required. It also includes identifying the petitioning parties, the place of filing, the basis for compensation and any interim protection that is required. The client's thoughts and inputs should be considered while deciding the course of action so as not to miss any insights into the matter.

e) Advising And Strategizing:

Ensure that you have taken the time to go over the papers and are clear on the various legal propositions that your client can take. Be gentle but firm while sharing these and advising the client on the best option. In case the client prefers an option different to your recommendation, do not act unless you are convinced that the client's preferred choice is a sound option and the best solution for their case.

Strategizing and advising continues throughout the process of resolution of the dispute, and in some cases leads to solutions other than litigation. For example, the case of a landlord who filed a petition to evict his tenant on the grounds of personal need. However, by the time the landlord reached the Supreme Court, he no longer needed the premises and was content with a substantial increase in rent. Hence, the litigation strategy changed, and he was advised to settle the dispute through ADR methods like mediation.

Alternate Dispute Resolution (ADR) And Preventive Action:

Each of the four ADR methods is a distinctive process and comes with its own unique advantages. Arbitration, Conciliation and Lok Adalat are codified while Mediation is governed presently by judge-made-law and the Mediation Bill is pending.

Arbitration is a process of adjudication wherein the parties agree that a third party will decide their dispute and that decision will be final.

Mediation is a non-adjudicatory process where a neutral person assists the parties to reach their own, amicable settlement which is then binding upon them. A mediator cannot advise or decide for the parties the settlement terms. In some cases, there is a compulsory pre-litigation or preventive mediation before filing a case, as under the Commercial Courts Act.

Conciliation is rather similar to mediation inasmuch as it requires the active participation of the parties, and the two terms are often used interchangeably. However, unlike mediation, if the parties' consent, the conciliator can advise them on settlement terms.

Lok Adalat, where a sitting or a retired judge helps the parties arrive at a compromise, outside the formal court proceedings. If there is a compromise, the Order so passed is binding upon the parties.

To enable the client to make the right ADR choice, you should be able to effectively differentiate between them and explain their advantages.

In the case of continuing business relationships, or family matters, a settlement between the businesses, or the families through conciliation or mediation is a better suggestion than litigation in perpetuity, as it encourages business growth and mental peace.

The movie 'Erin Brockovich', based upon true facts, depicts the advantages of an out-of-court settlement. In a class action in the USA, over 600 persons litigated against two companies for contamination of water leading to the death of many little children. The plaintiffs soon realised the trial would take years and they were running out of time and money, while the defendant-companies, already suffering from bad press and negative publicity, were afraid of huge damages awarded by the Court. In a win-win for both sides, they finally settled on approximately five million dollars per person, and that ended the case.

ADR not only reduces the burden on the courts but being cost and time efficient, is invariably a win-win situation for all parties involved.

To Conclude:

  1. Treat the client with respect and hear them out.
  2. Do not rush to reach a conclusion or give an opinion; analyse and plan.
  3. Let's not only think litigation. Let's first think preventive and let's think settlement.
  4. Have a balanced approach when advising clients and be honest in your opinion at all times.
  5. Don't engage in falsity to win a case. Remember loyalty is to the Law and not to your client. Your reputation as an officer of the court is your most important asset. Never allow it to be compromised.
  6. It is our responsibility towards the legal profession, and towards the community, to provide legal aid to those in need of legal services but unable to afford it.
  7. Lastly, remember, the age-old quote attributed to the President Theodore Roosevelt, "people don't care how much you know, until they know how much you care".

The writer is an Advocate-on-record at the Supreme Court of India. Views are personal.

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