Client Interview
Overview
The legal client interview is a learned skill crucial for most types of legal
practice. No two interviews are the same, and lawyers working directly with
clients need to develop their own unique style. Observing experienced
interviewers in practice is one of the best ways to develop one’s own style, but
it is important also to understand the theory behind best practice interviewing
technique.
This chapter refers primarily to client interviews in a client-centred practice and
especially to the first interview of a new client. It is important to understand the
goals of the interview, the professional attitudes and appropriate interview
techniques. Lawyers also need to be aware of their professional ethical
responsibilities, to recognise issues which often arise in legal interviews, and to
follow appropriate steps before, during and after the interview. The chapter also
suggests strategies for interviewing clients with a hearing disability and
suggestions for working with a sign-language interpreter.
The goals of the client interview
On meeting a client for the first time it is crucial to establish a trusting and
professional relationship. This is achieved best if the lawyer is relaxed, caring
and sincere, rather than overly formal or forcing a kind of professional
impression the lawyer does not actually feel. Many clients will trust and relate
better to a lawyer who comes across as genuine and unpretentious, rather than a
lawyer who is knowledgeable but comes across as arrogant. Once initiated, the
professional relationship will help the client to relax and to have confidence in
the lawyer and the process involved in obtaining legal help.
The client may have a biased or erroneous view of the law and lawyers, based
on a negative experience in the past or on aspects of popular culture and beliefs.
Such biases are not uncommon but can be overcome by the lawyer successfully
establishing a professional relationship with the client and building trust and
confidence using strategies discussed below.
Sometimes clients are very nervous at the initial interview due to anxiety over
their case, including embarrassment or fear of the consequences. Often you will
be the first person they have spoken to about the problem, and often you will be
the client’s “last resort” in trying to resolve the issue. The lawyer needs to take
steps to reduce the client’s anxiety to help the client communicate, since stress
can reduce a client’s ability to recall aspects of the case, and to remember any
advice given or directions about what to do next. Therefore, it is important for
the lawyer to develop sufficient emotional intelligence to identify and
understand the personal significance to the client of certain events and
situations. Often a client’s concerns will include non-legal issues or problems
that do not readily involve a legal answer. The lawyer should be careful not to
dismiss such issues, but to acknowledge them and suggest an appropriate
referral or other way to manage the situation.
The goals of the client in a legal interview may not be the same as the goals of
the lawyer. Primarily, after beginning a professional relationship with the client,
the lawyer should identify the client’s goals, to clarify them if necessary and to
communicate to the client the nature, capacity and limitations of the help the
lawyer can provide. Therefore, it is the lawyer who should control the
interview, even in a client-centred practice, to ensure the needs of both parties
are met as much as possible. Keeping control of the interview, clarifying the
legal needs of the client and advising the nature and limitations of assistance
available, while remaining sensitised to the client’s personal situation sounds
complicated, but it is part of developing a professional
lawyer-client relationship.
The lawyer needs to identify the legal issues from the client’s narrative and to
obtain as much relevant detail as possible using direct questions in the time
available and without causing exhaustion or distress. The legal issues and the
relevant details may not accord with the client’s priorities, which should not be
ignored or dismissed. The lawyer may need to dedicate time during the
interview to discuss non-legal issues and appropriate referrals if necessary.
The lawyer needs to provide clear advice on the law concerning the legal issues
identified, the options available to the client with the likely outcomes, and the
likely costs involved in the lawyer’s opinion. In complex matters, a second or
third appointment may be necessary before such full advice can be given, and in
some cases as mentioned above it should be delivered or confirmed in writing.
In addition, the lawyer has to decide the level of service best suited to the
client’s needs. It may be that one advice session during the interview is
sufficient. At the other extreme, the client may have a case that merits further
investigation, researching the facts and the law, and possible representation in
court. Time is of the essence. Ideally, the first interview should be no more than
one hour and maybe as little as 20 minutes. Interviews that go too long are
usually the result of the lawyer losing control and failing to manage the
dialogue in an objective way to meet the legal needs of the client. Some clients
will try to dominate the meeting and use it to vent their emotions or give many
examples of their case, such as the extent of their suffering or loss, or the
behaviour of the other party. It may be necessary for a lawyer to be assertive
and with compassion, provide clear but respectful indicators when it is time to
wind up the interview. In any case, the lawyer should ensure the client leaves
the interview knowing the next steps to be taken (if any) to progress the case.
The lawyer may need to write up (or dictate) notes from the interview, conduct
legal research, write a letter, contact witnesses, commence negotiations or
initiate an action. The client may need to gather documents, follow up a referral,
obtain contact details of witnesses or gather financial records or other evidence.
The lawyer should ensure the client has understood the advice, any options, and
the limitations of the service offered. This check back can be done at the end of
the interview as a way of concluding the interview, or ideally, it can be done in
writing with a subsequent letter of advice that summarises the content of the
interview. If the matter is to be ongoing, it is advisable to send the client two
copies of the letter confirming the advice and request the client to sign and
return one copy, together with a signed retainer and cost agreement if
appropriate.
Finally, it is difficult to overstate the importance of the initial interview. The
quality of the professional relationship established at that time is crucial to the
client’s experience of what happens in the life of the case, including the client’s
attitude to billing, to the reputation of the lawyer and the law firm, and to the
client’s overall satisfaction with the legal help, regardless of the outcome of the
case.
The interview room
Ideally, initial interviews of clients should be conducted in a room dedicated
and prepared for client interviews, not in the lawyer’s office. A first interview in
the lawyer’s office may be intimidating and/or distracting for the client; there
may also be files or notes visible to the client which could breach
confidentiality and the interview may be disturbed by incoming calls or
messages.
The interview room should be clean, with basic but comfortable furniture,
keeping in mind that many clients are anxious at the first interview. As well,
overly luxurious surroundings may intimidate or distract the client who may
worry about the likely costs. Both lawyer and client should be seated at the
same height. The lawyer will need a desk to write on, but unless there are
security concerns it is preferable not to sit with the desk as a barrier to
communication between lawyer and client. The room should have a door for
confidentiality. A well-equipped interview room will have a distress-signal
button discreetly placed under the desktop for the lawyer to use if help is
required. Preparation should also include drinking water and note paper for the
client to use, and tissues discretely placed. Offering tea or coffee may help an
anxious client to relax and can facilitate better communication.
The lawyer should dedicate at least 20 minutes for the initial interview and
ideally not more than one hour. Inward telephone calls or other interruptions
should be prevented, although a telephone and computer in the room may help
to gather information and assist with advice or referrals.
The lawyer will have to ensure a conflict check was done prior to the interview,
and that copies of all documents and relevant correspondence have been
previewed and are at hand for the interview. Finally, the lawyer should be
informed, or be sensitive to the possibility, of whether the client has special
needs such as a disability or other concerns which may hinder communication
or otherwise impact on the interview process. To that end, the lawyer needs to
keep an open mind and be able to respond appropriately to the needs of this
client, rather than adhere to rigid office practices, no matter how well-
intentioned. Similarly, support staff will be trained in client-focused behaviours
and able to respond appropriately to individual client needs.
Listening to the whole story
Lawyers are generally not trained to listen, yet the ability to listen deeply is a
paramount skill, essential to finding out as much as possible about the client’s
case in the shortest time. Listening at a deep level means hearing the facts but
also interpreting them through the client's tone of voice, body language and
other non-verbal cues.
To develop this skill, lawyers need to be aware of how their own
preconceptions, their values, beliefs and attitudes, can affect their interpretation
of the client’s case. It is important to first understand the case from the client’s
point of view in order to recognise the client’s priorities and motivation. Then it
will be possible to give advice in ways the client will better understand and
more likely to accept.
It is important to get all the relevant facts. Lawyers are expected to know what
is relevant and what is not, and to have sufficient communication skills to guide
the interview so the client releases the information that will allow a sufficient
legal understanding of the case, without feeling the human and personal
implications of the events have been ignored or dismissed. Unless the client
tells you the whole story, the client's interests could suffer. The client will
communicate best if she/he knows the lawyer is listening and understanding the
narrative.
First impressions count. So it is important to conduct legal interviews in a
comfortable, pleasant environment. Sometimes clients will be emotional so it is
good to have a jug of water and glasses nearby and tissues handy, but not
obviously so. Ideally, the client should also be provided with pen and paper in
case they want to draw a picture (eg of complicated relationships, or of how a
motor accident happened) or to write notes of the advice or referral details.
After introductions, put the client at ease by briefly describing the nature of the
legal service including any known limitations so the client is not under a false
belief, and assure the client of the confidentiality of everything discussed. Then
invite the client to relate their legal problem and listen without interruption and
without writing. Pay close attention, and listen to the client. Keep eye contact
and perhaps give occasional supportive phrases to encourage the client to
continue.
Active listening
"Active listening" means conveying to the client that the lawyer not only
understands the facts, but also the client's feelings. The lawyer does not need to
agree with the client’s choices or actions to have empathy for their situation.
Much human communication is non-verbal and most people know if someone is
actively listening to them or not.
Most clients are anxious at the initial interview. Often their fears involve not
being taken seriously, not being understood, not being able to afford the legal
help, and ultimately of losing the case. Such anxieties cause some clients to
procrastinate and delay, and they seek legal help too late for effective legal
intervention or just before a deadline for action such as filing a document at
court. In those cases the lawyer needs to think carefully, consult an experienced
supervisor if necessary, and give considered advice about the action to take, the
likely costs involved, and the consequences of delaying further.
Avoid listening only for the legally relevant parts of the narrative. The
professional relationship is built on trust. It is important for trust to develop
quickly, so the client needs to know that the lawyer takes seriously the client’s
emphases, priorities and meaning of the events. Only then will the client believe
the lawyer really understands.
It is unwise to assume that, because the client is prepared to see you and pay
your fee, the client also trusts you. If you are listening "actively" you will show
the client that you understand the problem at the practical and emotional levels.
This will increase the client's trust and confidence in you and may encourage
further important disclosures.
Open questions
Open questions invite the client to say what they want, using their own
priorities. Closed questions invite a yes or no answer, or indicate a specific short
response. Lawyers should avoid closed questions, except for later in the
professional relationship when specific information is required, such as in
drafting an affidavit or completing a court document.
At the beginning of an interview, particularly with a new client, an open
question such as "What can I do for you?" works well because it sets no agenda
and suggests no structure. Sometimes, the client will speak at length and the
lawyer will need to decide when and how to interrupt, depending on the nature
of the problem and the nature of the legal service. Other times, the client will be
anxious, afraid or otherwise distressed, and might need additional questions in
order to help them talk about their problem.
Some clients, especially young people, people with disabilities, traumatised
clients or clients from a different cultural background to the lawyer may need a
slower and more careful approach to develop enough trust and confidence in the
lawyer for them to speak about their problem. Lawyers need to develop their
emotional intelligence to be able to interpret how the client feels as the
interview proceeds. Ignoring the client’s emotional shifts in the initial interview
will slow the development of trust and risk damaging the professional
relationship before it has fully developed.
Structuring the interview
Good interviews are based on a structure which can be varied to suit the
circumstances in each case. As every client, lawyer, legal service and nature of
the case is different, every interview will be unique. The goal is to develop a
case theory which is grounded in the priorities of the client, and composed of
the facts and the law in each case. The the following is a good model for an
initial legal advice interview that can be changed to suit different situations.
Stage 1 After introductions, a brief description of the service and assurance of
confidentiality, allow the client to speak, stating the reason for his/her visit
without interrupting or taking notes.
Ensure the client is comfortable. Use open questions, focus attention on the
client, listen deeply, try not to interrupt and don’t take notes. This stage may
take 5 or 15 minutes, occasionally longer. Stage 2 Summarise the problem and
ask the client questions, to "fill the gaps" from a legal perspective and record
notes of the background, circumstances, and what the client wants. Interrupt the
client in a respectful way if they are still speaking after about 20 minutes by
saying something like: "I’m sorry, can I interrupt you for a moment. I need to
clarify a few details, so I can decide the advice". Then ask questions and take
brief notes as required. Does the client have any letters or documents relevant to
the case? Has the client attempted to settle the dispute? Now may be a time to
take copies of documents, clarify apparent contradictions, gaps in the story or
confusions, and begin to mentally develop a case theory.
Stage 3 Give feedback on the client's situation so the client is confident the
lawyer understands the problem and what the client wants. Confirm the client’s
narrative in summary form, including their issue, incident or problem and what
the client is seeking from the legal service. Stage 4 Give legal advice to the
client, including the relevant law, the limitation period, if any, the possible
remedies or available options for the client to consider, the legal merit and
possible costs for each option, and in some cases, advice on the best option for
this case.
Advise the client, including whether representation, negotiation, mediation,
legal research, referrals or other ongoing assistance is appropriate, and the likely
costs if relevant. Here the lawyer may continue to engage interactively with the
client to find out more information such as financial circumstances or
alternative accommodation possibilities, as their personal circumstances might
make some remedies or interim measures not appropriate. Now may be a time
to complete forms and draft documents or correspondence.
Stage 5 Next steps to take, if necessary, by the client and by the lawyer. Clarify
what will happen next including referrals, court appearances, references,
counselling, witness interviews, negotiations with other parties, letters to be
sent, documents to draft, consider an application for legal aid, and a timeline of
actions to be diarised, as well as a date of next appointment if appropriate.
Clients need coherent advice about the choices they have, and that includes
advice about which of the alternatives is most likely to be of help in their
personal circumstances and priorities. Indeed, a lawyer has a positive duty to act
or advise the client, and that duty may include a duty to recommend a particular
course of action. However, it is still the client's decision to accept or reject the
lawyer’s advice, and the lawyer must accept that decision, noting on the file the
reasons for the lawyer’s advice and the client's contrary perspective.
Avoiding a premature conclusion It is crucial for the lawyer to hear the client
out, in full, which is best done with active listening strategies as described
above.
Lawyers who attempt to cut short a sequential narrative do so at their peril.
With experience it is possible to develop a case theory at speed, particularly
with a client already known to the lawyer, but no two cases are identical and the
"heard it all before" reaction should be consciously set aside while the client
explains in detail what happened and what they want.
The client's motivation
Active listening helps the lawyer to understand the motivation for the client’s
behaviour. The client might state their motivation directly or it may be
suggested within details of the case. The lawyer needs to understand the client’s
motivation in order to have empathy for the client, whether or not the lawyer
personally agrees with the client’s decisions or actions in the past. In some
cases, the client may have a mental health problem which may or may not be
apparent during the interview. Difficulty in understanding the client’s
motivation may indicate the client has a mental health issue. The lawyer should
not be presumptuous however as the client might simply have difficulty
communicating or might be affected by anxiety.
Client reluctance
Some clients are reluctant to talk regardless of the skills adopted by the
interviewing lawyer. The client may feel the problem should be kept "in the
family"; that certain ideas are offensive and cannot be aired or not aired before a
member of the opposite sex; that the lawyer is too young or too old to
understand. Sometimes the client will be embarrassed or shamed due to the
sexual or violent nature of the facts, or that she/he has been "conned" and is not
willing to disclose the fact.
There are many signs of reluctance, for example the client may suddenly change
the topic or insist that a particular event is insignificant, the client may flush or
become unexpectedly aggressive, or simply hesitate in his/her [Link]
lawyer should again exercise emotional intelligence, proceed with firmness but
with sensitivity and respect for the client’s situation , reminding them of the
confidentiality of the professional relationship and explain that proper advice
can only be given if the lawyer knows the full story, even if it is sensitive or
embarrassing. If the client's reluctance continues and if other lawyers are
available, the lawyer could try asking if the client would prefer another lawyer
(eg older or of different gender) to continue the interview. Sometimes a support
person, such as a relative or a social worker present in the room may help the
client overcome reluctance. Sometimes the reluctance may be caused by the
presence of a third person, and the lawyer may decide to suggest that person
leave the room for a short time.
In any case, failure to explore sensitive areas properly risks proceeding with an
underprepared case, and, after the interview, the lawyer should record any
reluctance by the client that was apparent and the lawyer’s attempts to
overcome it.
Dishonest or misleading client
If the lawyer suspects the client is being dishonest or misleading during the
interview, the lawyer should put that suspicion to the client as soon as possible
in a respectful way. For example "You say (X) however earlier you told me (Y).
I’m feeling a little confused so can you explain it to me please?" or "You say
you were at home on that evening however the statements from the two
witnesses say you were in the hotel. Could you be mistaken about the date?"
Sometimes the apparent dishonesty results from miscommunication, a
misunderstanding, a genuinely poor memory or from defensiveness and
embarrassment. If the lawyer thinks the later is the case, then the best response
is to assure the client, as above, and clarify the situation as soon as possible. In
some cases, the lawyer might decide the level of the client’s dishonesty may be
for "appearances" and is not so significant as to warrant probing for
clarification.
However if the dishonesty is significant, or an apparently deliberate attempt to
mislead, the lawyer should act as soon as possible by respectfully and carefully
confronting the client with the evidence or reasons for thinking the deceit has
occurred. Where the client persists in apparent deliberate dishonesty during the
interview, the lawyer should move to terminate the interview and advise the
client a professional relationship can only be built on trust which is apparently
absent in this case. This is a decision for the lawyer to make on ethical grounds.
The lawyer is free to refer the client to other lawyers for legal assistance.
A lawyer’s reputation is crucial for their professional identity. A lawyer’s
failure to act on dishonesty by the client as soon as possible makes any later
action by the lawyer more difficult and the delay difficult to explain. If the
lawyer continues to ignore the dishonesty, events could easily and quickly
develop where the lawyer feels compromised, or worse, actually becomes
compromised, their reputation may be damaged and in litigation they may be
accused of misleading the court.
Completing the instruction sheet
Every client interview should be recorded by completing an instruction sheet or
similar document. Ideally, lawyers do this after the interview using the notes
made during the interview, when the lawyer’s attention should be wholly on the
client and not on completing forms. Some legal services have paralegals who
obtain the client’s personal details prior to the interview, check to see if there is
a conflict, and obtain a brief description of the nature of the client’s problem. If
there is a conflict, the paralegal would inform the client of the conflict and
arrange a referral to another lawyer.
The instruction sheet should include full name and contact details of the client,
the name and contact details of the other party, as well as their lawyer and any
witnesses. Also included should be the background to the case, the details of the
relevant events including dates and names of individuals, the client’s
instructions – meaning what the client wants – and the advice given by the
lawyer at the interview, including advice on limitation dates.
If the matter is one for ongoing assistance, a file needs to be prepared
containing the instruction sheet together with copies of any relevant documents
taken during the interview. The relevant dates, including deadlines for filing
documents, appearing in court and other limitation dates, need to be entered in
the lawyer’s diary and the main diary of the practice.
Ideally the lawyer would use a standardised instruction sheet to cover as many
eventualities as possible although not all of the information will be pertinent at a
first interview. When a particular point in a form is inapplicable, the lawyer
should strike it out withan initial rather than leave a blank space.
It is advisable in every case to note whether or not there is a limitation date or
time limit of some sort, and if so, record on the instruction sheet that the client
has been advised about it.
Competence to accept instructions
At some stage during or after the interview the lawyer may need to decide
whether or not to "accept" the client’s instructions, to provide ongoing
assistance and open a file. A lawyer has no duty to accept instructions from a
client, however a barrister may be obliged to accept instructions from a lawyer
on a client’s behalf in certain situations. A lawyer may accept instructions only
in respect of work in which the lawyer has competence, that is the necessary
skills and resources to carry out competently. Inaccepting work, the lawyer is
"holding out" that she/he is competent, and could be liable for incompetence
under the misleading conduct provisions of the Australian Consumer Law
(ACL) as set out in Sch 2 of the Competition and Consumer Act 2010.
Section 34 "Misleading conduct as to the nature etc. of services" in the ACL,
states:
A person must not, in trade or commerce, engage in conduct that is liable to
mislead the public as to the nature, the characteristics, the suitability for their
purpose or the quantity of any services.
Note: A pecuniary penalty may be imposed for a contravention of this section.
The ACL also applies in New South Wales. See s 28 "Application of Australian
Consumer Law" of the Fair Trading Act 1987, which
states:
(1) The Australian Consumer Law text, as in force from time to time:
(a) applies as a law of this jurisdiction, and
(b) as so applying may be referred to as the Australian Consumer Law (NSW),
and
(c) as so applying is a part of this Act.
(2) This section has effect subject to sections 29, 30 and 31.
A lawyer may also be liable for breach of an implied condition of competence
under the contract with the client. Therefore, a lawyer should refuse to accept a
client’s ongoing instructions where the complexity of the matter is beyond his
or her capacity.
A dissatisfied client may complain to the Office of the Legal Services
Commissioner (OLSC), the Law Society of New South Wales or the New South
Wales Bar Association (The Bar Council) – or equivalent in other states or
territories – that a solicitor or barrister has shown "unsatisfactory professional
conduct" (ss 296-299 of the Legal Profession Uniform Law (NSW)).
A lawyer should not hesitate to seek guidance from a senior colleague or from
their state or regional Law Society, or to refer a matter to a senior colleague or
other practitioner if they have doubts about the necessary skills and resources to
act competently in a case.
Authority to act and obtain information
A client authority is a document signed by the client which evidences the legal
professional relationship and the authority for a lawyer to act for a client. An
example is a request for a medical report about a client. A lawyer can only
obtain such information from third parties such as a doctor with the client's
consent in writing. The "authority to act and receive information" can be
combined in one document, and it should bear a recent date.
Ideally, an authority to obtain information should be addressed specifically to
the supplier of the information rather than "to whom it may concern". In the
case of medical reports, the information should not be provided unless the
request is an original document signed by the client.
Open a client file
A lawyer must open a file in the name of the client as soon as practicable after
an interview where the lawyer agreed to provide legal services to the client. The
file should contain at least the full name and address of the person, the date of
the initial interview, the background of the case and a short description of the
services which the practitioner has agreed to provide. The file should contain
and highlight any important dates, such as a limitation date, which should be
included in the office diary. The lawyer should also enter the client’s details in a
file register. The file and the register should be kept for at least seven years after
the date of the last entry.
Terms of engagement
As soon as practicable after interviewing a new client for whom the lawyer will
continue to act, the lawyer should send to the client a "Terms of Engagement"
letter which includes a summary of the background to the case, the client’s
instructions and the services the lawyer has agreed to provide.
Costs agreement
As soon as practicable after interviewing a new client for whom the lawyer will
continue to act, the lawyer should send to the client a "Costs Agreement" which
is an offer inviting the client to agree to pay the lawyer an agreed amount or at
an agreed rate for the agreed services to be provided by the lawyer.
The Costs Agreement should include the date, a brief description of the legal
services proposed by the lawyer for the client, a description of how the client
can accept the offer and how the money can be paid, and of how either party
can terminate the agreement, as well as information about the retention of
documents and the confidentiality of the client’s information.
Proofs of evidence
The lawyer should draft a proof of evidence as soon as practicable after
obtaining full instructions from the client. A proof of evidence is a full and
complete statement of the factual history of the matter from the client’s
perspective. The document should be dated, signed by the client and witnessed,
and the client should be provided with a copy.
Other proofs of evidence should be obtained from each witness willing to
support the client’s case. Those proofs of evidence should also be dated, signed
by the person and witnessed.
The proofs of evidence should enable the lawyer to provide confident advice to
the client about the merit of the case and the nature of any weaknesses that need
to be addressed in preparation for negotiation, mediation or a trial. A proof of
evidence will also enable the lawyer to advise the client appropriately if the
client or a witness seeks to vary their evidence at a later stage.
