CPRA 040/041 LECTURE NOTES
CHAPTER 02: ADVISING AND COUNSELLING
CLIENTS.
INTRODUCTION.
- In the previous chapter we spoke about the first interface between you as a lawyer
and a new client in circumstances where the client approached you for the first
time seeking legal assistance with his/her legal problem. One of the key things
you had to do, was to actively listen to the client’s story, receive the relevant
information, evaluate it and then make a determination as to whether the narrated
story presented a legal problem or not.
- When clients approach us as lawyers, they do so because they find themselves in
a difficult situation that they cannot handle themselves, necessitating the need to
find out as to what they can do and what they should do, given the nature of the
problem they are facing at that given moment.
- The two questions, “What can I do?” and “What should I do?” will be at the
forefront of the client’s desire to find a solution to their problem. They place
substantial reliance on the lawyer’s ability to find and present a workable legal
solution to their problem.
- The question “What can I do?” will invariably be the frontal question for the client,
it will require the lawyer, having listened to the client’s story and evaluated the
relevant information provided, to identify and further evaluate the available
options and the consequences of adopting each one of them (This is advising). It
is your professional and ethical duty to advise the client with regard to the pros
and cons of each option presented and which, in your view is the best option
suitable to providing a workable solution to the client’s problem.
- On the flipside of it, the question “What should I do?”, requires you, as the lawyer
to help the client to make the right decision, in the context of the options and
concomitant consequences of those options presented. In other words, It is also
your professional duty to help the client to make a proper and correct decision
(This is counselling). You will empower the client first, by giving him/her the
various options and their consequences. Over and above that, you must help
the client to decide what to do, and to help him/her to make the right
decision.
You are therefore required to provide advice and counselling in almost all areas of law,
given the fact that clients will always present different legal problems that will require
you to delve into different fields of law. Advising and counselling are two significant
skills that run through the entire litigation process from beginning to end.
ADVISNG THE CLIENT.
Remember that even before you provide any conclusive advice to client, you must
formulate your own view/opinion on the facts presented (Which requires proper fact
analysis) and the relevant law that applies to those facts (Which requires proper legal
research. This has to do with whether the law does indeed provide an effective legal
remedy or an answer to the client’s problem). Whether you are able to promptly give
client advice, will largely depend on your existing knowledge of the specific area of law
applicable to the problem presented.
Note: When you are representing the plaintiff in civil action, you would greatly be
concerned about what the cause of action is for your client and the legal elements of that
cause of action.
On the flipside, when you are representing the defendant, you would be greatly
concerned about what the defence is for your client, together with the legal elements of
the chosen defence.
At the center of your ability to provide client with sound and practical legal advice, you
will rely to a large extent on your skills in both fact analysis and legal research. We need
to employ these two skills in order for us to identify the possible solutions and the
concomitant consequences.
Providing advice to client must be done in a structured way with different stages, as
follows:-
1. You must first identify the client’s problem and what his/her objectives are.
(What does client want to achieve. What does he want to see happening in
relation to the problem presented?)
2. Investigate the facts and identify the available options. (Focus on the relevant
facts that present the legal problem)
3. Identify the legal principles that apply to the facts. (What is the effect of the
applicable legal principles on the problem and the entirety of the client’s overall
objectives?)
4. Identify the consequences of each option. (You will do so by considering both the
legal and no-legal consequences of each option)
5. Discuss the options and their likely consequences fully with client. (What are the
likely advantages and disadvantages of each option identified)
6. Tell the client which option out of all options presented you think is the best
option and explain to him/her why you think so.
COUNSELLING THE CLIENT.
As mentioned before, advising and counselling are invariably, complementary skills
that serve different purposes in the litigation process. Counselling itself serves the basic
purpose of empowering the client to be able to make an informed and correct decision
with regard to the resolution of the legal problem presented.
WHAT TO DO WHEN COUNSELLING THE CLIENT.
You need to make sure that when you counsel the client, you comply with the
following:-
1. Once you have given advice, ensure that the client has sufficient opportunity to
evaluate the advice you gave. (Give them enough time to consider the advice and
apply their mind thoroughly before making a decision)
2. Give the client sufficient assistance to enable them to make the right decision (This
is important because some clients need more help than others. You need to take
into account each client’s individual character make-up.)
3. Make sure that all of client’s questions are properly answered.
4. Be alert to any wrong decision or mistake that the client may make. In that event
you must intervene and make sure that a right decision is made.
Note: Although the client must make the final decision at the end of the day, you still
have to consider whether that decision does not conflict with your ethical duties as
lawyer. (For example, if the decision made or instructions to be given involve elements
of illegality then you cannot accept such instructions or agree to act in such a manner
that will compromise both your professional and ethical duties as a legal practitioner.
ORAL ADVICE AND COUNSELLING.
- Oral advice is advice given orally to client. It can be given face-to-face during an
interview or over the telephone. Care should always be taken when giving oral
advice under pressing circumstances where you do not have enough factual
material on which to base sound legal advice or even have sufficient time to
research the law before you are able to give comprehensive advice on the legal
question posed by the facts.
- Oral advice under these circumstances may present a myriad of problems
including you as the lawyer (1) giving oral advice based on insufficient or
incorrect information or on incorrect interpretation of the facts or the law. Again
the (2) oral advice given may still be misinterpreted or forgotten by the client and
this may result in a dispute arising at a later stage between yourself and the client.
(You must therefore advice client accordingly, of the potential pitfalls that relate
to urgent oral advice)
- Avoid allowing yourself to be rushed into providing advice under such
circumstances. If you are pressed by client to proceed with the advice, you need
to make sure that such advice is qualified and that you record both the advice and
the facts upon which such advice is based. (You may even require the client to sign
a disclaimer absolving you form liability for incorrect or negligent advice)
Note: Clients are entitled to sue you for professional negligence should they
suffer harm occasioned by your professional negligence)
- Also take note that you may still be faced with circumstances where you have to
give impromptu advice at court, do not force client into making any hasty decision.
Make sure that the client is given enough opportunity to apply their mind to the
proposed advice or direction to be taken in the furtherance of their mandate.
WHEN ADVISING, ALWAYS KEEP THE FOLLOWING IN MIND:-
1. Remain neutral at all times. (Always remember that client is entitled to objective
advice. The client must be placed at the center of advising and counselling process.
Meaning that the client must be placed in a position where they are able to make
a correct and informed decision after receiving objective advice. You have a duty
to help the client arrive at a correct decision and the client has the ultimate right
to make his/her own decision.)
2. In as much as you have a duty to help client reach a correct decision, in
circumstances where the client makes a wrong decision, which decision is a
decision that can reasonably be made in the context of the facts presented, point
out the consequences of that decision as you see them. (Once the client has made
his/her final decision, accept the instruction and implement. You would have
discharged your duty if you have provided sufficient assistance to the client to
enable him/her to make a decision.).
Do not undermine the client’s confidence by telling him/her, that the decision is
wrong and how they will regret making that decision. Make sure that the decision
made is within the confines of what is legal, do not accept anything that requires
you to act outside the confines of the law.
3. Don’t rush the client into making a decision, especially under strenuous
circumstances involving court appearances.
4. Treat the client as an individual with his/her own character traits. (What is his
level of sophistication, intellectual capacity, emotional stability etc.)
ADVISING BY LETTER.
- More often than not, lawyers advice their clients by letter. This often becomes
necessary even in circumstances where initially oral advice was given under
circumstances of extreme urgency. Written advice in these circumstances will
serve to confirm the initial oral advice given. In this way, a permanent record of
the advice given is created which allows the client to read the advice at their own
pace and digest it.
- In circumstances where an advocate has been briefed to provide a legal opinion
on a question of law presented, the attorney will usually convey the essence of
such opinion in a written letter of advice.
- Advocates do not usually give advice by letter, they do so in a form of written
memorandum or written opinion.
- The difference between advice by letter, written opinion and advice by
memorandum lies in the fact that memoranda and written opinions are usually
aimed at another legal practitioner whereas advice given by letter is aimed at the
lay client (Ordinary client).
- When written advice is given to lay clients, it should be done in such a way that it
conveys to the client in a clear fashion, what his/her rights and options are
including the consequences of those options.
FORMAT OF THE LETTER OF ADVICE OR MEMORANDUM
- In its format, the letter should allow the subject matter to be broken down into
paragraphs and sub-paragraphs, each of which must deal with distinct aspect at a
time and should be as follows:-
- (1) The initial part will be the executive summary (This is where you summarize
the client’s problem/instructions, the answer to the problem and what your
recommendations are.
- (2) The body of the letter. (This aspect discusses the problem presented in detail.)
- (3) The reasoning/argument (This part outlines the reasons for the conclusions
you have reached in the context of the facts presented and the law applicable to
those facts.
- (4) Conclusion and practical advice. (This aspect repeats the recommendation and
advises the client with regard to the practical implementation of the
recommendation).
ADVICE PER MEMORANDUM.
- Advising by memorandum is usually used to provide advice to corporate clients
or institutional clients like government departments, insurance companies and
municipalities. This is premised on the assumption that most corporate clients will
have their own internal legal departments that properly staffed by legally
qualified individuals to provide general legal advice.
WRITTEN OPINION.
- Written opinions are a traditional way in which an advocate gives his/her
opinion. However, there is nothing stopping an attorney from providing a written
opinion to any client. A written opinion is generally intended to give objective
practical advice. (The advocate tells the client what he/she thinks of the facts and
the law applicable to those facts.)
THE NATURE AND CHARACTER OF WRITTEN OPINIONS
- (1) When opinions are written, they are written with the aim of providing an
answer to some legal or factual question presented. (They are advisory in their
nature).
- (2) They are not academic writings, even though they may contain an academic
discussion of a point of law.
- (3) They deal with real cases. They are case specific, meaning that they are based
on the relevant facts of a particular case
- (4) They require a full consideration of the legal principles applicable to the facts
presented.
- (5) They are objective in nature.
- (6) They are not specifically designed for the counselling process.
FRAMEWORK FOR A WRITTEN OPINION.
- (1) It will contain an introduction.
- (2) A thorough discussion of the facts.
- (3) An analysis of the legal principles involved.
- (4) The conclusion or the actual opinion.
POINTS TO NOTE WHEN DRAFTING AN OPINION
- It is important to always conduct a proper fact analysis and legal research before
you set out to write an opinion.
- Give practical advice supported by good and sound reasons.
- Consider the main argument that could be raised against your own opinion and
deal with them.
- Use headings and sub-headings where appropriate.
- Give full citation when you rely on any authority.
- Do not express your views in an arrogant and absolute manner.
GENERAL PROTOCOL TO BE FOLLOWED.
- You must always be alive and avoid providing client with the advice he/she
would like to hear. (Do not develop an overzealous desire to please client in the
absence of objective facts and PROPER consideration of correct legal principles)
- Avoid being vague in your advice. Express your views accurately, confidently and
precisely.
- Always be sensitive to the client’s feelings. Avoid being judgmental towards your
client.
- If you have any doubts about the position you have adopted, seek a second
opinion from a trusted colleague
- Allow the client to make the final decision during the counselling process.
(Remember it is the client’s right and duty to make the final decision.)
- Once the client has made a final decision, respect the decision and implement it.
(Remember that you ought to have properly counselled the client)
- Do not contradict or devalue the client’s decision by words or conduct, even if you
strongly disagree with that decision.
IMPORTANT ISSUES OF ETHICS
- You may not under any circumstances encourage or facilitate a crime or dishonest
conduct
- Your primary duty to your client is to give honest, objective practical advice taking
into account only the best interests of the client.
REFER TO PARAGRPHS 9.2, 9.3 AND 9.9 OF THE LEGAL PRACTICE ACT CODE
OF CONDUCT.
CJ MOKHUDU
