CLIENT INTERVIEWING AND COUNSELING By Valerie Pearce What is the difference between interviewing and counseling? Interviewing is the gathering of information FROM your client and counseling is providing information TO your client. Client-Centered Representation: What does the client want to come out of this? Stand in your client s shoes and see the case from their perspective. Put your client F-I-R-S-T. Frequent : Keep your client regularly informed about what is going on in their case. You should see an in-custody client within 72 hours of receiving the court appointment and at least monthly thereafter. Make contact with all clients at least once per month. Make going to the jail a habitual regularly scheduled event. If client is housed far away, see them on periodic basis and use alternative means of communication. Let them know what to expect. Informative: Provide clients with detailed information so that they can make informed decisions. Repetitive: Repeat information as often as necessary to client and ensure that he or she understands. Have the client explain back to you to be sure that they understand. Use common language rather than legalese. Draw or write it out so that client can visualize. Show clients discovery and demonstrative evidence. Sensitive: Approach client with a positive attitude and be empathetic to the impact of the circumstances and stress that is on the client and his family Don t start off talking about getting a plea at the first interview. It is important to establish a trusting relationship with your client. Show your client respect. Tough: Although, you should be sensitive to the client, DON T sugar-coat the reality. Be honest and straight-talk the client. The client is facing tough decisions and tough consequences. I. INTERVIEWING TO GET THE MOST USEFUL INFORMATION FROM YOUR CLIENT A. TIPS FOR INTERVIEWING CLIENTS: 1. The information you get could be the difference between your client being found guilty and not guilty. If you don t get the right information, you may miss a crucial defense. 2. Approach is crucial. Don t assume your client is guilty and start off with explaining a plea deal. Be non-judgmental. 3. See client as quickly as possible to begin establishing trust and rapport. 4. It may take multiple regularly scheduled meetings to get a client to open up. 5. What does client want to see happen? Discover their perspective. 6. Ask open-ended questions. Instead of asking: Do you have children? Say: Tell me about your family. 1
7. Ask the same questions in different ways (and more than once) 8. Give your client the opportunity to tell you his/her story in their own way. 9. Go into each interview knowing the basic information you have to get from your client 10. Be quiet and LISTEN. Don t interrupt. Can use prompts to refocus client. 11. Have an interview sheet or checklist 12. Don t be afraid to deviate from the script. Be conversational. 13. Look your client in eye and make sure they know you are listening to them and what they have to say is important. Keeping your head down and taking notes is not appropriate the whole time they are talking. I often write down key words and go back and fill in blanks immediately afterwards. 14. Keep good notes in your file. This will save you from having to ask your client for information they ve already given (which affects trust) 15. Create as relaxed environment as possible. 16. You may have to do a little digging. Follow-up on areas where more detail is necessary. If your client shuts down, you may have to back out and change the subject to something less stressful and later, come back and reword your question. 17. Get family/background information. Who is your client? How did they get here? What support do they have? Who are they supporting? What does your client see in his/her future? Look for context, mitigation, defenses 18. Get witness or alibi information. The last thing you want to happen is for your client to say during trial: Well my boss was there and he saw the whole thing. Always ask. 19. Look for legal issues in telling of story. Are there suppression issues? Issues for a Motion in Limine? Collateral issues-like housing, immigration, etc? 20. File motions to expand discovery and investigation based on details of client s story. Obtain relevant records. 21. Invest the time. B. MAKING SURE YOU UNDERSTAND YOUR CLIENT 1. What are his/her issues? a. Mental Illness b. Retardation c. Youth d. Stubbornness e. Fear Each of these will warrant that you approach your client in a different way. Sometimes there will be a combination and only through talking with (not at) your client, will you figure out how 2
to best deal with him/her. Obtain records as necessary through release/court order. Talk with family and friends. They can give you information and help you understand your client s needs. 2. What is his/her motivation for the crime? (If they committed the crime-don t assume guilt.) a. Drug use b. Peer Pressure c. Retaliation d. Fear Knowing underlying issues will go a long way in negotiation and sentencing. C. BE POSITIVE/PRODUCTIVE/PROACTIVE 1. Be Positive: Your approach to the information begins at your first meeting. This doesn t stop after the interview. Put the best possible spin on the information your client gives you. Know what to say and what to leave out. Use a sheet in front of your folder that you can open and refer to client information at a moment s notice so that you do not have to ask client questions in front of judge. Keep it updated. 2. Be Productive: Keep up with the law on the most common cases you handle. Revise your interview sheets when necessary. 3. Be Proactive: Know your judges and DA s. Use this information to benefit your clients. II. COUNSELING YOUR CLIENT A. ESTABLISHING RAPPORT AND TRUST WITH CLIENT Whether it s for fifteen minutes or over several months, as soon as that case is assigned to you a relationship has begun. How successful that relationship is will largely be up to you. 1. Talk to your client not at him/her 2. Establishing trust 3
a. know the law that includes affirmative defenses. Your client needs to trust you as an attorney. Be prepared with your elements of the crime and their defenses. b. let the client know that you are comfortable in the courtroom and with the way things work. c. Keep them informed. 3. Treating client with respect a. your job while interviewing your client is to let them know that the opinion of the cops, DA, judge and general public is not your opinion b. how you speak to your client is their indication of how you will represent them B. TIPS FOR COUNSELING CLIENTS 1. Inform client of confidentiality in a confidential setting. Explain your role. 2. Warn client not to share Dropping off discovery? Not best idea. DO go over ALL of discovery with client (You can bring meaning to it.) 3. Talk about yourself. Open up and be sincere with them and they will do same with you. 4. Set up clear expectations. 5. Don t make promises you cannot or will not keep. 6. Use common language. Not legalese. Don t be fake, but DO break it down. Have them repeat and explain it back to be sure they understand. 7. Always be honest and upfront. Don t sugarcoat. 8. Explain again and again, if necessary. Draw it out and make it visual. (This also helps to document what you explained.) Be patient. 9. Be sensitive. Choose words wisely. 10. Confront the good, the bad, and the ugly. Leave no stone unturned. 11. Prepare your client for court and possibility of testifying. 12. Research and prepare before you meet with client. 13. Demonstrate your zealous advocacy and confidentiality. Don t throw clients under the bus. File and argue motions with them in courtroom beside you. Be conscience of appearances. Clients see you joking around with officers and District Attorneys in front of courtroom. Let them know that you re going to put up the best defense possible and that you re going to argue to the judge that they get the outcome that they want (even if you don t agree with it.) And then do just that. 14. Reassure them and explain what happened after each court appearance. Put their obligations in writing to them so that they can reread. Reassure them that you are on their side while remaining objective about the law and the facts. Take the time to explain the legal language they will hear in court. Don t just leave the conditions of probation to the 4
PO. Don t let the first time they hear the language of the transcript be from the judge. Don t let the first time they know jail is possible is when the deputy puts the handcuffs on them. 15. Advise client of courtroom decorum. (what to wear to court, how to act, not stare down the alleged victim, etc ) C. MAKING SURE YOUR CLIENT UNDERSTANDS YOU 1. Don t speak over the client s head a. Legal jargon is not necessary to explain most charges or defenses b. Just because your client has a long record, doesn t mean s/he understands what s happening. Maybe no one else ever took the time to explain it. 2. No two are alike a. Some clients will have had little or no experience with the system and quickly become intimidated, let them know that you can address them on their level b. Talk to them about what they are going to hear in court and assure them it will be explained afterwards if they don t understand. c. A client always wants to know the worse case scenario and it is important that you tell them all the things that could happen and based on your experiences what probably will happen. III. DEALING WITH DIFFICULT CLIENTS Difficult clients come in various categories: Here are a few Mr. ANGRY/HOSTILE Mr. WON T TALK Miss KNOW-IT-ALL Mrs. DEPENDANT ON PEERS/RELATIVES/YOU Mr. MENTALLY ILL/ MENTALLY CHALLENGED Miss ANNOYING/OBSESSED/OVERINVOLVED Mr. COMPLAINER Mr. DISHONEST Miss DEPRESSED Mrs. WON T FOLLOW ADVICE Mr. You Work for the State Miss UNREALISTIC 1. Don t Avoid Them! 2. Don t Lose Your Temper-You are the PROFESSIONAL. 3. Keep client regularly informed. Communication is key. 4. Set up clear expectations. Be clear in your communications. Explain how long the process may take. 5
5. Invest the time. Show them that their case is important. Especially if they are in jail, even if you don t have discovery yet, drop in and see how they are doing and if they have a question. 5 minutes may make all the difference to that client. 6. Don t investigate and try the case without them. 7. Remember that this is THEIR life on the line andd their ONLY case.(how would you feel?) 8. Don t just withdraw. Try to address the issue first. Withdrawal is the last resort especially if it is not in client s best interest. 9. Act like you care. 10. LISTEN to them. 11. Analyze to discover the REAL issue. 12. Don t be threatened. (esp. by letters to the Regional Defender) 13. Document your file. Show your work. 14. Bring in support. (Investigator, Regional Defender, Colleague) 15. Get professional help from an expert/ /evaluator. IV. Review your obligations under the RULES OF PROFESSIONAL CONDUCT, including comments and ethics opinions, and relevant case law. Client-Lawyer Relationship Rule 1.2 Scope Of Representati ion and Allocation of Authority between Client and Lawyer (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to thee means by which they are to be pursued. A lawyer may take such action on behalf of the client as iss impliedly authorized to carry out the representation. (1) A lawyer shall abide by a client's decision whether to settle a matter.. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, ass to a plea to be entered, whether to waive jury trial and whether the client will testify. (2) A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (3) In the representation of a client, a lawyer may exercisee his or her professional judgment to waive or fail to assert a right or position of the client. (b) A lawyer's representation of a client, including representation byy appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of anyy proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. 6
Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Comment [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client' s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. Seee Rule 1.2. Thee lawyer's dutyy to act with reasonable diligence does not require the use of offensive tactics or preclude the treatingg of all personss involved in the legal process with courtesy and respect. [2] A lawyer's work load must be controlled so that each matter cann be handled competently. [3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions. In extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidencee in the lawyer' s trustworthiness. A lawyer's duty to act with reasonablee promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client. Rule 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by thesee Rules; (2) reasonably consult with the client about the means by which thee client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permittedd by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment [1] Reasonable communication between the lawyer and the client iss necessary forr the client effectively to participate in the representation [4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request informationn concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should address with the clientt how the lawyer and the client will communicate, and should respond to or acknowledgee client communications in a reasonable and timely manner. 7
Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information protected from disclosure byy paragraph (a)) to the extentt the lawyer reasonably believes necessary: (1) to comply with the Rules of Professional Conduct, the law or court order; (2) to prevent the commission of a crime by the client; (3) to prevent reasonably certain death or bodily harm; (4) to prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services were used; (5) to secure legal l advice about the lawyer's compliance with these Rules; (6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (7) to comply with the rules of a lawyers' or judges' assistance program approved by the North Carolina State Bar or the North Carolina Supreme Court; or (8) to detect and resolve conflicts of interestt arising from the lawyer s change of employment or from changes in the composition or ownership of a firm, but only if the revealed informationn would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information i relating to the representation of a client. (d) The duty of confidentiality describedd in this Rule encompasses information received by a lawyer then acting as an agent of a lawyers' or judges' assistance program approved by the North Carolina State Bar or the North Carolina Supreme Court regarding another lawyer or judge seeking assistance or to whom assistance is being offered. For the purposess of this Rule, "client" refers to lawyers seeking assistance from lawyers' or judges' assistance programs approved by the North Carolina State Bar or the North Carolina Supreme Court. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of law or the Rules of Professional Conduct; (2) the lawyer's physical or mental conditionn materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: 8
(1) withdrawal can be accomplished without material adverse effect on the interests of the client; or (2) the client knowingly and freely assents to the termination of the representation; or (3) the client persists in a course of action nvolving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; or (4) the client insists upon taking action that the lawyer considers repugnant, imprudent, or contrary to the advice and judgment of the lawyer, or with which the lawyer has a fundamental disagreement; or (5) the client has used the lawyer's services to perpetrate a crime or fraud; or (6) the client fails substantially to fulfill an obligation to thee lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; or (7) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (8) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law; or (9) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps too the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled andd refunding anyy advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. State v. Ali, 329 N.C. 394 (1991) Impasse in jury selection: Client s wishess control. Defendant claimed that the trial court violated his right to counsel by allowing his attorneys to accede to his desire to not strike a juror, over their objections. The Court observed that [n]o person can be compelled to take the advice of his attorney. Normally, tactical decisions, such as which witnesses to call, whether and how to conduct cross examin ations, what jurors to accept or strike, and what trial motions to make are ultimately the province of the lawyer... However, when counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client's wishes must control; this rule is in accord with the principal agent nature of the attorney client relationship. Where there is such a disagreement, counsel should make a record of it. Here, counsel proceeded properly, therefore there was no error. State v. Ali, 329 N.C. 394 (1991); accord State v. Freeman, 690 S.E. 17 ( N.C. App. 2010). The absolute impassee rule appliess only when the defendant s wishes with regard to trial strategy are lawful. State v. Williams, 191 N.C. App. 96, 104 05 (2008) (even if there was an absolute impasse as to jury selection tactics, defense counsel could not defer to the defendant s wishes to engage in racially discriminatory jury selection) State v. Davis, 101 N.C. App. 12 (1990) Impasse in whether to call a witness: Client s wishes control. This deference to the client s wishes does not solely apply to voir dire, butt also has been held to apply to the calling of witnesses over the objection of an attorney 9