Tuesday 11th February 2020

Advocacy and Ethics – client interviewing: the initial interview

SOLICITORS GENERAL DUTIES IN THIS CONTEXT

- Taking clear instructions is a critical duty for which a solicitor may be liable in negligence if:
• Drafts submissions personally;
• If he makes a mistake or error;
• Fails to deliver submissions;
• Fails to set aside an irregular order;
• Fails to seek to commit the for contempt of court defendant for breach of an injunction

SOLICITORS DUTY TO WARN

- Per Lincoln, J. in Dutfield v Gilbert H Stephens & Sons [1988]Fam Law 473.
It was the duty of the solicitor to inform and advise, ensuring that the information and advice was
understood by the client. It was not part of his duty of care to force his advice on the client.

PROBLEM: ADVICE NOT ACCEPTED

• The problem arises if the advice a solicitor has given to the client is disregarded by the client and
he/she rejects it.
• Nevertheless, the solicitor is obliged to carry out the instructions of the client or else determine the
retainer.
• If the solicitor is then sued for negligence he/she will have a good defence if that advice was
correct.

GENERAL RULE
• A solicitor is generally free to decide whether to accept instructions from any particular client.
Law Society’s Guide to the Professional Conduct of Solicitors
• Any instructions on behalf of the client received through the third-party should be confirmed directly
with the client.
- Law Society’s Guide to the Professional Conduct of Solicitors

SOME IMPORTANT EXCLUSIONS WHERE INSTRUCTIONS MUST BE DECLINED

- A solicitor should decline to accept instructions where:
 a breach of law;
 a breach of the rules of conduct;
 a conflict of interest;
 The solicitor is incompetent to act;
 The solicitor or one of his partners relatives had some officer appointment which might lead to
a conflict of interest;
 The clients action is malicious or vindictive.

WHERE INSTRUCTIONS MUST NOT BE DECLINED

- A solicitor cannot decline to act on:
• The basis of colour, race, national listening origins of the client;
• On the basis of the sex or marital status of the client;
• Solely on the basis of the clients disability;
• Where the solicitor undertakes legal aid work and the matters on which the client seeks
advice is eligible for legal aid.

LIABILITY MAY ARISE IN TAKING EVIDENCE

- Where:
• Failure to take a witness statement before trial;
 • Failure to take a witness statement even if the witness had been deposed by the other side;
• Failure to subpoena a witness before trial;
• To ensure witness available for and at the trial.
• Note: decision whether or not to call certain witnesses matter of judgment.

PRELIMINARY: ‘SOFT SKILLS’

• Client interviewing skills are essential for all professionals
• These are transferable skills
• Legal professionals, especially, need to develop these skills
• It is worth noting that these are not ‘unnatural’ skills – we use many of these ‘people skills’, often
without realising them

WHY DO LAWYERS NEED THESE SKILLS?

Relates back to the reason why the client is in your office in the first place.
• You can only assist / provide advice if you have all the necessary information.
• Do you have all the necessary / relevant information?
• At this stage you are usually not in the best position to know what is necessary or relevant.
• Your client may be just as nervous / unsure as you are. And may also be distressed / upset / angry.
• Power relationships: the ‘client centred’ interview
• Consequences of not getting all the information you need.
• Many of the complaints against legal professionals arise out of the initial interview. As a
consequence, the professional bodies (the SRA especially) have professional guidelines that MUST
be followed.

PRELIMINARY MATTERS: INTRODUCTIONS

- First impressions are crucial
- Putting your client at ease and creating a foundation of professionalism

PRE-INTERVIEW INFORMATION
- In many instances, you have very limited information as to why the ‘client’ has made an
appointment to see you.
- Example: “Olu Joseph has made an appointment to see you regarding a problem at work”
- What would be the consequences of only having minimal information?
- In other situations, you may know a lot more, perhaps because it is an existing client who is
consulting you about another matter.
- What is the consequence of this

THE INITIAL INTERVIEW: GETTING INFORMATION

• Open questions vs. closed questions
• Open questions: designed to encourage the flow of information.
• Especially useful in the early stages of the interview
o E.g. ‘We understand that you are here to talk about a problem at work.’
• Closed questions: when you need specific details
o E.g. ‘Do you remember what date that was?’
• Listen + Empathise = Encourage the flow of information
• HOW do you listen + empathise?
• ‘I understand’; ‘This may be difficult for you to talk about’ …
• ‘Difficult’ questions: Explain that there is a reason for asking
• Be alert to ‘hidden’ issues. Is there something the client is not telling you?
• Make a note and come back to this later.
AFFIRMATION AND CONFIRMATION
• ‘I can understand that you are upset … That doesn’t seem right …’
• ‘I agree – that is not really acceptable’
o Is there a risk with this?
o ‘Am I right in thinking …?
• ‘Can we go over something you said earlier?’
• ‘If I understand you correctly, what you would like us to do …’
• Affirmation & confirmation can also be non-verbal.
• A ‘client-centred’ interview BUT you must manage client expectations.
• Example: ADR instead of litigation could be a way to resolve the issue.
• Q? ‘This is something we will certainly be able to handle’

MANAGING EXPECTATIONS
Are the clients’ expectations reasonable? This may be because:
• The Law itself does not offer a remedy.
• The clients have, themselves, done something which precludes a remedy
• The duty to mitigate your own loss
• ‘Those who come to equity must come with clean hands’
• You / your firm cannot or should not take on this work
• What your client wants is unethical / illegal.
There are other ways to achieve what the client wants.

CONCLUDE
Strategies for bringing the interview to an end.
• Are you sure you know what the client wants?
• How can you confirm this?
• Essentials (even if you have to repeat):
• Instructions in writing
• Fees
• Contact
• Complaints
• What are you going to do after this interview?
• Is there anything you want the client to do?
• Giving final reassurance.

DEBREIFING
• Your thoughts about the client
• A review of your own conduct / behavior.
• Do you need more information? If so, how will you obtain this?
• Are there any ethical issues that arise?
• Follow up – a plan of action.
• A conflict of interest check; opening a client file.
• Writing up the notes of the interview – a memorandum of the interview.