IMPORTANCE OF CLEINT COUNSELLINGSUBMITTED TO : MR. MANOJ KUMAR SIR SUBMITTED BY SARA PARVEENSEMESTER VIROLL NO 130

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPURTABLE OF CONTENTS1. Acknowledgement .....032. Research Methodology..043. Introduction064. Objectives...075. Counselling Functions....086. Initial and Subsequent Interviewing117. Conclusion .....188. Bibliography...19

ACKNOWLEDGEMENTAt the outset, I would like to express my heartfelt gratitude and thank my teacher, Mr. Manoj Kumar Sir for putting his trust in me and giving me a project topic like this and for having the faith in me to deliver it to the best. Sir, thank you for an opportunity to help me grow.My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of our library and IT Lab that was a source of great help for the completion of this project.

Sara Parveen(Semester Six)

RESEARCH METHODOLOGYThis Doctrinal research is descriptive and analytical in nature. Secondary and Electronic resources have been largely used to gather information and data about the topic.Books and other reference as guided by Faculty have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been referred.Footnotes have been provided wherever needed, to acknowledge the source.

INTRODUCTIONProfessional Legal Education should necessarily focus on the lawyering skills. Client counselling is a vital skill in which the students of law should be trained. One of the significant functions of a lawyer is to advise the people who seek assistance in knowing the legal implications of their actions. The lawyer is looked upon to facilitate decision making in certain critical legal matters. This function of the lawyer influencing and facilitating decisions is called counselling. Bar Council of India, the highest professional body of lawyers, has a key role in Professional Legal Education.1 It has drawn up a detailed scheme on practical training consisting of professional ethics, barbench relations, contempt of court, moot court, pre-trial procedures, negotiations, interviewing and counselling, drafting of conveyances and pleadings, legal aid, public interest lawyering etc.[footnoteRef:2] [2: http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf]

Definition:LegalCounselingistheprocessofhelpingaclienttomakeadecision Aspartofthatprocess,thelawyermaygiveheropinionaboutthematterand maydrawonmoral,social,economicandotherconsiderationsinsoadvising.[footnoteRef:3] [3: http://www.law.indiana.edu/instruction/profession/2010/doc/intro_counseling.pdf]

The word 'Counsel' has its origin in the Latin word 'consilium' which means advice.[footnoteRef:4]According to Blacks' Law Dictionary, counsel means advice and assistance given by one person to another in regard to a legal matter, proposed line of conduct, claim or contention. As a matter of fact lawyers are also legal counsels. Counsellor is an attorney; lawyer; member of the legal profession who gives legal advice and handles the legal affairs of client, including if necessary appearing on his or her behalf in civil, criminal or administrative action and proceedings.[footnoteRef:5] [4: Oxford Reference Dictionary, Oxford University Press, 2003] [5: West Publishing Company]

OBJECTIVES To study about client counselling To know about the processes involved in client counselling

COUNSELLING FUNCTIONSThe process of counselling has two functions: 1. To help the person talk about, explore and understand his or her thoughts and feelings and workout that what he or she might do before taking action. 2. To help the person decide on his or her own solutions.[footnoteRef:6] [6: Mike Megranathan, Counselling in Dorothy M. Stewart Management Skills, Infinity Books, Delhi 2003. p99]

Lawyers counsel the client in deciding how his problem can be sorted out under the laws. Legal counselling is the process by which a lawyer communicates advice to a client.[footnoteRef:7] [7: V. Nagaraj and Frank Block, Interviewing and Counselling in N,.R. Madhava Menon, Clinical Legal Education, Eastern Book Co. Lucknow, 2003]

A client is a person, natural or legal who approaches the lawyer for legal assistance. The word client has its roots in the Latin word 'clients'. Client is a person using the services of a professional person or organization [footnoteRef:8]. Counselling is the activity in which one person seeks and in one way or another, pays for help from another person. It is characterized by need on one side of the relationship, by willingness to help on the other, and by and inter personal contract based on mutual attraction.[footnoteRef:9]Counselling as a professional activity will involve competence and expertise in addition to mere willingness. Legal counselling is fairly considered a 'service' under the Consumer Protection Act, 1986 making the lawyer accountable for deficiency.[footnoteRef:10] In a counselling relationship the client has to open himself to help and the lawyer has to protect the best interests of his client. Legal interviewing and counselling is what lawyers do in an office where they see clients one or two at a time, with the door closed.[footnoteRef:11] [8: supra n.3] [9: Thomas L. Shaffer, Legal Interviewing and Counselling, West Publishing Company, 1976] [10: For further reading See, Consumer Protection Act, 1986; Avtar Singh, Law of Consumer Protection, Eastern Book Co; Indian Law Institute, A Treatise on Consumer Protection Laws; D.N. Saraf, Law of Consumer Protection in India, Tripathi.] [11: Thomas L. Shaffer, Supra n.7]

Lawyers elicit information from their clients, which information forms the basis for their advice. Legal counselling can be for litigation or for planning. Clients may seek advice as to proper legal course of action before Courts or as to estate, tax or business planning.CLIENT INTERVIEWINGIn a lawyer - client meeting, the client opens up and talks his problem and concerns and expresses his expectations. The lawyer listens, notes down and questions the client for necessary information. There is a sharing of information, views and needs through verbal communication. This communication which is the life blood for effective counseling is called 'interviewing'. Client interviewing is a prominent part of legal profession. Giving options, suggesting alternatives, effective client representation, drafting of documents, pre-trial preparations etc. are all dependent on this client interviewing.[footnoteRef:12] [12: http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf]

PURPOSE OF CLIENT INTERVIEWING The lawyers require to know the factual dimensions of their client's situation.Factual matrices are the conditions for laws to operate. "Neat packages of fact are apredicate for professional activity by lawyers".[footnoteRef:13] One fundamental purpose ofinterviewing is to know the facts story. The responsibility of gathering the facts is thatof the lawyer. The fact that the client has approached a lawyer itself conveys that he orshe has identified some legal problems. But the client may not know what matters, facts,instances and documents are significant and relevant. The lawyer will have to extract thenecessary information and identify the legally sensitive facts. Expression of feelings likedisillusionment, disgustion, pain etc can also constitute important facts. Identification ofwitnesses, documents etc, are also done by interviewing. [13: Id]

The second significant purpose of interviewing is building the professional relationship with the client. The lawyer shall ensure to the client that his interests will be well taken care of and he and his feelings will be genuinely respected. Mutual trust is the characteristic feature of the professional relationship. If the client does not trust he may not divulge certain secrets and may find uneasy to discuss certain delicate matters. It is pertinent to note that the duty to maintain confidentiality is implicit in the lawyers duty to give priority to the interests of the client. Bar Council standards of professional conduct and etiquette mandates that the advocates shall not directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.[footnoteRef:14] [14: Bar Council Standards of Professional Conduct and Etiquettes Rule 17]

In establishing the professional relationship the lawyer will be necessarily interested in knowing certain personal details about the client, his background, credibility etc. If the lawyer has certain reasons to disbelieve the client he shall openly discuss with the client the factors inhibiting the trust relationship. Finally it is the preference of the lawyers to decide whether to take up the case of the client.[footnoteRef:15] In the professional relationship mutual obligations will be discussed and agreed upon. One interesting and important aspect is that of fees. Quoting the fees is an art best learnt by experience. Lawyer shall be guided by his stand at the bar, nature of the case13 and affordability of the client. Free legal assistance to the needy is a noble duty.[footnoteRef:16] An Advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.[footnoteRef:17]The third notable function of interviewing is understanding the expectations of the client. What are the interests, expectations and concerns of the client? Unless these are understood and seriously considered, the efforts to satisfy the client will go in vain. It should be remembered that it is the satisfied client who while advertise for that lawyer.[footnoteRef:18] [15: supra n.11 Rule 11 reads: an advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.] [16: Supra n.11 Rule 46] [17: Supra n. 11 Rule 20] [18: supra n. 11 Rule 36 reads: an advocate shall not solicit work or advertise, either directly or indirectly.]

INITIAL AND SUBSEQUENT INTERVIEWINGInterviewing the client may be a continuous process as the matter proceeds. There may be cases of a single interview and counselling. But generally when the client seeks counselling and assistance in deciding from alternatives available and also representation in the Courts or other means of implementation of the decisions, interview will be an on going process. The first/initial interviewing shall be carefully attended to. "But the initial interview is essential to cementing the foundation for the lawyer-client relationship. If the job is poorly done, the foundation will be unable to support the construction of the complex professional relationship needed to conduct a long or emotionally difficult case."[footnoteRef:19]The client may be very nervous or skeptical. It may be nerve wracking for the client. Lawyers shall develop the ability to spot nervousness and the capability to tackle such clients. An informal friendly enquiry, offering refreshments, changing environment may be required to make such clients comfortable. The law office shall be properly ventilated and illuminated. Orderly arrangement and aesthetic look of the office shall be given due attention. Office atmosphere should keep the clients comfortable. Meetings with clients should be in privacy where ever desirable otherwise clients will not open up. They shall be assured that their secrets would be safe in the lawyers hands. [19: Robert M. Bastress and Joseph D. Harbaugh: Interviewing, Counselling and Negotiating Skills for Effective Representation, Little Brown and Company.]

Interviewing Techniques Interviewing is a very purposeful activity and attending to small things in a meticulous manner can provide fruitful results. Counsellors should be patient and careful listeners. That the client has approached a particular lawyer shows that he/she trusts the lawyer and a patient hearing will only enhance the trust. Moreover the client fears that his property, life or liberty would be at stake and his feeling should be respected. Lawyer should listen with interest and ensure uninterrupted hearing. Office staff should be instructed accordingly. Physically responding to what is said, commenting and questioning on certain significant matters will assure comfort. Lawyer shall mind the manner and tone of their questions. Silences will have to be tolerated, unwarranted interruption can block important information. An atmosphere that encourages expressions of feelings should be ensured. But the lawyer shall be dispassionate and objective lest his logical, critical and analytical skills will be impaired.[footnoteRef:20] [20: http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf]

BEFORE COUNSELLING Counselling is a professional activity anchored on the special knowledge of the counsellor. The client in most cases absolutely surrenders his matter to the lawyer and accepts his suggestion in toto. The lawyer is duty bound to uphold the best interests of his clients by all fair and honourable means. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. [footnoteRef:21]There can be disciplinary action by Bar Council for breach of code of ethics.19 Lawyer shall also bear in mind his accountability under consumer law and common law,[footnoteRef:22] [21: Supra n. 11, Rule 24] [22: See Section 35, Advocates Act 196]

The lawyer shall understand the following before counselling a client- 1. The facts pertaining to the clients' situation 2. Clients' perspectives and expectations 3. Clients' concerns as to costs, consequences and risks 4. Law applicable 5. Considerations of justice, fairness and morality 6. Bar Council Code of Ethics During Counselling Lawyer shall act responsibly while communicating legal advice to the client. Care shall be taken to speak in client's language. A lay man cannot appreciate legal terminology. It shall be the duty of the lawyer to assist the client in understanding his rights and duties. The lawyer shall explain all options in the situation with consequences and costs. Assistance in making choice from available options shall be rendered. No option shall be forced upon the client. An advocate shall not, at any time, be a party to fomenting of litigation.[footnoteRef:23]The lawyer shall be objective and honest and explain the weakness of the case as well. [23: Supra n. 11 Rule 18]

EFFECTIVE COUNSELLING Effective presentation of a legal opinion/advice depends on several important requirements. Substantial thoroughness in the knowledge of law and procedure is a must. Logical and critical thinking will enhance appreciation of the objective dimensions of the client's situation. Good inter personal skills will help in interviewing the client properly and broadening the information base. Sharp comprehension skills will be required to appreciate the expectation and concerns of the client. Liberal education about developments and happenings around is also important. We have to be alive to the fast changing would around us. Updation of knowledge by keeping abreast of changes in codified law and of latest decisions of Courts and tribunals is indispensable. Clarity of thought and good communication skills are essential to send the message across to the client. LEARNING COUNSELLING SKILLS Learning to apply law in a given situation can mark the beginning. This will help students to identify the problem, formulate the issues and seek solution under law. We cannot conceive of a lawyer who cannot talk. Communication skills can be learnt by interacting in the class room discussions. Raising questions should be encouraged. The opportunity to answer questions raised in the classroom can be offered to students with the teacher's concluding remarks. Classroom presentations on small topics should be compulsory for students. Such presentations should be at least five for each student in every term. Group discussions and seminars for students will open more gates for student participation. 5 Counselling can be taught to students by stimulation exercises. The lawyer's role and the client's role can be enacted for the observation of students on hypothetical problems. Sufficient pre-planning is required. A variety of problems will have to be chosen. The students can be given mock counselling exercises where they will interview and counsel. The students can pick up counselling skills by observing real interviews and counselling in an advocate's office. This requires cooperation on the part of advocates and also the consent of the clients. Legal aid clinics and legal aid camps can offer great opportunity to law students in learning counseling techniques.[footnoteRef:24] [24: http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf]

CONCLUSIONClient counseling is the essence of the attorney client relationship. In the attorney client relationship, the client has come to the attorney seeking the benefits of his or her experience, knowledge, expertise, and practical wisdom to solve some kind of human problem. In this relationship, the client expects loyalty, understanding, professionalism, empathy, advocacy, competency, good legal advice, and success. In return, the attorney expects the client to be truthful, cooperative, to satisfy certain basic contractual obligations and also hopes for success. Client counseling is the point where these different expectations intersect. Client counseling is the process by which the attorney helps the client decide which legal and practical path is best for the client. The client must make the ultimate decisions, because it is the clients life, property or other interests that are at stake. In most situations the attorneys role is to help furnish alternatives and to help the client to select from among these alternatives. For client counseling to be effective, there has to be a mutual sense of confidence and trust. In other words, there must first be an effective and positive attorney client relationship. The better the attorney client relationship, the easier it is to professionally counsel the client. Good professional client counseling makes it easier for a client to make good decisions in his or her case. Good client counseling also requires open, candid, and effective communication between attorney and client.From a purely mechanical viewpoint, the typical clinical case is ready for the counseling phase when the fact development and legal research phases are more or less complete. Once all the facts are understood and the law is relatively clear, the law student and the client can begin a dialogue on how a given legal matter should be addressed or resolved. In this process, one should be aware that facts and law are always subject to some change and to differing interpretations. Similarly, the student should be aware that client counseling is an on-going process that starts when the client first comes in for an interview and only ends when the representation is completed. Like other stages in the attorney client relationship, some cases are easily counseled because the legal course is clear; in other cases the choices for the client are many and often conflicting. These last cases require much more counseling. In some cases, preliminary legal or practical advice may have already been given. Part of the counseling process should include a reevaluation of any preliminary advice that has been given. In the typical case, the process of educating the client, defining alternatives, and helping the client make good case decisions will probably require several meetings and letters. As a general proposition, clients may not be ready to make fully informed decisions at an early stage in their case. Similarly, in a typical case, the law student may not be ready to give good legal advice until the facts and law are relatively well settled and the supervising faculty member has been consulted. One reality of the fact or case development stage is that facts and law may change a bit. As the facts and law in a case change, legal opinions and advice may also have to change. Hopefully, these changes in direction are not abrupt or drastic. When these changes are drastic or abrupt, the law student is well advised to carefully explain the reasons for these abrupt changes in position. This reality of change as the case develops; helps explain why many lawyers are cautious or tentative in giving advice or counseling in the early stages of the case. Finally, legal counseling may occasionally have to be a hasty process. This is because external factors such as pleading deadlines or other time-based forces may limit the amount of time available to the attorney to carefully weigh and deliberate. In certain limited situations, a client may have to make a critical decision in a very short period of time. In these emergency situations, the student should make sure that the supervising faculty member is fully advised and consulted before any definitive legal advice is given. In all cases, the student and faculty member should develop a separate counseling plan or program for each client. Counseling, like interviewing, is a process that will require practice for the student to become more proficient. Like interviewing, good client counseling is a process that generally requires several meetings and discussions before the client can decide a particular matter or decide on a course of conduct. Each case should have a counseling plan. A good counseling plan or program will focus on the best legal and practical interests of the client and insure that there is client autonomy in the decision making process.

BIBLIOGRAPHY http://www.vpmthane.org/law1/Princ-Articles/Client_Counseling_for_Tomorrow.pdf http://www.law.indiana.edu/instruction/profession/2010/doc/intro_counseling.pdf Robert M. Bastress and Joseph D. Harbaugh: Interviewing, Counselling and Negotiating Skills for Effective Representation, Little Brown and Company Bar Council Standards of Professional Conduct and Etiquettes Rule 17 http://www.law.indiana.edu/instruction/profession/2010/doc/intro_counseling.pdf Mike Megranathan, Counselling in Dorothy M. Stewart Management Skills, Infinity Books, Delhi 2003. p99 V. Nagaraj and Frank Block, Interviewing and Counselling in N,.R. Madhava Menon, Clinical Legal Education, Eastern Book Co. Lucknow, 2003

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