Client Interview Essay PDF

Preview

Summary

Written section of client interview assessment. Received distinction grade. ...

Description

LAWS108 Professional Relationships Assessment: Client Interview Essay Introduction

Academics aside, the skills of a successful lawyer lay in their ability to master the art of human interaction and emotional intelligence.1 Such practice is embodied in the context of client interviews, one of the most crucial settings of a lawyer-client relationship.2 This paper will first explain the vital role of a lawyer’s understanding of legal ethics in the context of a client interview. Secondly, it will reflect on what areas of the author’s personal interviewing skills require improvement and how best to develop the ability to conduct effective client interviews. In combination, these elements will holistically examine the role of legal ethics theory in client interview skills and how this is reflected in a lawyer’s interviewing style.

Section 1 – Legal Ethics and Client Interview Skills

The traditional approach to client interviewing relies heavily on lawyer control of all legal matters, with little involvement from the client.3 This approach enforces an inherent hierarchical relationship between lawyer and client, where the lawyer assumes all decisionmaking power.4 By contrast, the participatory approach focuses on lawyer-client collaboration and empowering clients to understand and partake in decision-making.5 Plausibly, Lauchland & Le Brun argue that this widely-used approach reaps better results, as the client has a level of accountability for their participation.6 1 Gary S. Goodpaster, ‘The Human Arts of Lawyering: Interviewing and Counselling’ (1975) 27(1) Journal of Legal Education 5-52. 2 Avrom Sherr, ‘Lawyers and Clients: The First Meeting’ (1986) 49 Modern Law Review 323, 357. 3 Kay A Lauchland and Marlene J Le Brun, Legal Interviewing: Theory, Tactics and Techniques (Butterworths, 1996) 27. 4 Ibid. 5 Allan Chay and Judith Smith, Legal Interviewing in Practice (Law Book, 1st ed, 1996) 8, 12. 6 Lauchland and Le Brun, above n 3, 28.

A sound understanding of legal ethics theory is integral for the development of an effective client interview style. A lawyer’s understanding of their role as counsellors,7 can be reflected in their interview style through their ability to explain legal mechanisms such as confidentiality to clients and to communicate effectively with their client to establish rapport. The role of solicitors carries ‘onerous responsibilities, risks and pressures’8 as the legal profession is founded on lawyer-client relations and hence lawyers are under pressure to inform their clients with balanced and clear information9.

Building Rapport

A key means through which lawyers reflect their understanding of their role as not only legal advisors, but counsellors,10 is through their ability to build rapport with clients. It is integral that lawyers can engage in meaningful small talk, to put their clients at ease in situations that otherwise may be rather uncomfortable. 11 This tool enables lawyers to build up trust with their client, as well as to gage their personal nature and hence how best to ensure the client’s sense of ease.12

If a client is feeling physically comfortable, they are inevitably more likely to participate in an interview openly and honestly, in line with the participatory approach to interviewing.13 It is therefore important that lawyers are mindful of attending to their clients’ physical needs throughout the interview process. Ensuring the client’s comfort may include offering a 7 Thomas L Shaffer and James R Elkins, Legal Interviewing and Counseling in a Nutshell (West Publishing, 2nd ed, 1987) 11. 8 Virginia Shirvington, Professional Conduct and Advocacy: Avoiding Breach of the Professional Conduct and Practice Rules, Law Society of New South Wales 5.

9 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) rr 7.1-7.2. 10 Shaffer and Elkins, above n 7, 11. 11 David Binder et al, Lawyers as Counsellors: A Client-Centered Approach (West Publishing, 3rd ed, 2004) 83-86. 12 Linda F Smith, ‘Client-Lawyer Talk: Lessons from Other Disciplines’ (2006) 13 Clinical Law Review 505, 538. 13 Chay and Smith, above n 5, 16.

beverage or tissues and advising the client where the nearest bathroom is located.14 These considerations are reflective of a lawyer’s understanding of their role as not only legal advisors, but counsellors.

Explanation of Legal Considerations

When taking the participatory approach of lawyering, lawyers are responsible for ensuring they adequately translate legalese to plain English, to ensure their client understands the legal issues at hand.15 As aptly conveyed by Steven Pinker, there is an implicit guarantee that the information expressed by a lawyer will enable the client to make judgments with minimal effort.16 This understanding enables the client to have a level of autonomy in assessing their situation, as guided by their lawyer.17 For matters such as confidentiality, which Cunningham argues, validly, is one of the most critical issues in lawyer-client communications, it is integral that an accurate explanation is provided to clients to ensure they are fully informed. 18 As such, it can be argued that ethical legal practice consists largely of the lawyer advising and counselling their client, allowing for a more collaborative and well-informed decisionmaking process.19

Eliciting information

It is integral that solicitors prioritise open questions in interviewing, to enable the client to fully narrate their situation from their perspective, without interruption.20 A lawyer’s ability to 14 Lise Barry, Lawyers: Roles, Skills and Responsibilities (Lawbook, 2nd ed, 2015) 128 [3.190]. 15 Lesley Austen, Bryony Gilbert and Robert Mitchell, ‘Plain English - an Ethical Issue?’ (2001) 4 Legal Ethics 5, 5-7. 16 Steven Pinker, The Language Instinct (Penguin, 1994) 244. 17 Chay and Smith, above n 5, 7. 18 Clark D. Cunningham, ‘How to Explain Confidentiality’ (2003) 9 Clinical Law Review 579.

19 DE Rosenthal, ‘Evaluating the Competence of Lawyers’ (1976) 11 Law and Society 43. 20 David Binder et al, Lawyers as Counsellors: A Client-Centered Approach (West Publishing, 3rd ed, 2004) 41.

balance the asking of open, clarifying, leading and narrow questions, is reflective of their understanding of their role as sources of guidance and empowerment throughout the interview process. An effective balance in interview questions will enable the lawyer to consider both legal and non-legal issues in play, which may provide insight into personal considerations of the client that could affect their decision-making process.21

Active Listening Skills

A lawyer’s understanding of their role as a source of guidance, rather than merely of knowledge, is reflected in their active listening. Binder et al refer the term ‘non-committal acknowledgements’ to describe reactions and affirmations to clients such as ‘mmm’, ‘interesting’ and head nodding, which encourage open dialogue.22 Such acknowledgements indicate investment in the client’s narrative and are reflective of a sense of empathy and understanding. Further to this, skills such as reflecting and reframing aid in conveying a sense of interest in the client’s narrative. These skills are reflective of the participatory approach of lawyering, whereby the client possesses a level of control in the context of a client interview.

Section 2 – Personal Reflection

As the role of solicitors relies largely on communication with clients, it is integral that law students grasp the importance of communication skills from an early stage. In the context of client interviews, using plain English requires lawyers to translate legalese and jargon, into language that is more accessible for clients.23 Ultimately, the effective communication with a client leads to the client’s participation in an informed and collaborative decision-making process, reflective of the client-centred approach to lawyering. 21 Chay and Smith, above n 5, 7. 22 Binder et al, above n 24. 23 Peter Rodney, ‘Plain English and the Law’, (2001) 4 Legal Ethics 18, 19.

I personally can reflect that my ability to use plain English effectively, without omitting detail or simplifying vital information, requires development and improvement. This is largely due to the undeniable importance of being able to express yourself effectively and clearly, without room for misunderstandings or misinterpretation. I recognise the importance of explaining legal considerations such as confidentiality, without skimming over details such as exceptions to the rules of confidentiality, due to over-simplification. It is also integral that I do not assume the client’s level of knowledge of the law, as this come across as belittling. The use of plain English makes the law far more accessible and comprehendible for clients24, which is integral in the client-centred approach to lawyering.

I feel that to improve my effective use of plain English, I need to practice writing complex arguments in plain English, without over-simplifying my thoughts, or in this context, legalese, so as to lose important meaning. Through this, I can better my ability to fully convey my thoughts, avoiding any misunderstandings with clients that may have otherwise arisen.

Further, I believe it is important to read over and edit assessment tasks to review my use of plain English and self-assess my use of clear, logical language in daily conversations, as well as in a professional context where possible. I feel this skill is a challenge which may require some work as it is not something I am actively conscious or aware of. It is often very easy to assume a listener is on the same ‘wave-length’ as you and possesses the same knowledgebase. This inevitably is not always the case in the legal profession and hence demands a deeper consideration.

Another way I may be able to better my use of plain English is possibly by translating segments of written pieces from newspapers or journal articles into more effective, clear 24 Ibid.

versions of the same content. I believe that this assessment of someone else’s work may aid in my understanding of how particular phrases may be interpreted differently by different people.

In addition to use of plain English, I can also reflect that I need to work on my ability to build rapport with clients, in an authentic and unforced fashion. I appreciate the importance of rapport-building in forming a relationship of trust and familiarity with clients,25 as well as assisting in putting the client at ease.26 I feel this skill requires development as it can play a substantial role in the initial stages of a client interview i.e. clients are far more likely to confide in and speak frankly to a lawyer whom they feel they can trust and relate to.27 This establishes a positive relationship from the onset and removes any potential hierarchical barriers to communication.

With respect to rapport building, I feel that this is largely a matter of ‘practice makes perfect’ and self-assessment/regulation. To practice for the context of interviews, I need to make a conscious effort to engage in meaningful small talk when meeting new people. This may include investing in aspects of their personal life, as well as external factors such as the weather.

As I am fairly extroverted and open, I need to be more conscious of people’s varying personality types so I can tailor my approach to mirror their tone and manner. This will enable me to form a strong relationships with clients, as the basis for future interactions.

Conclusion

25 Linda F Smith, ‘Was it Good for You Too? Conversation Analysis of Two Interviews’ (2007) 96 Kentucky Law Journal 579, 609-610.

26 Linda F Smith, ‘Client-Lawyer Talk: Lessons from Other Disciplines’ (2006) 13 Clinical Law Review 505, 516; Lauchland and Le Brun, above n 3, 45. 27 Chay and Smith, above n 5, 16.

The communication between clients and lawyers is of paramount importance, particularly in the modern approach of client-centred interviewing. This paper has analysed the importance of a lawyer’s understanding of their role, as well as how to best develop communication skills required for effective client interviewing. It can be concluded that there are varying skills such as rapport-building and active listening which reflect a lawyer’s understanding of legal ethics theory and their role within the legal profession....