Introduction

Welcome to Client Interviewing and Counseling in the Prospective Client Consultation. Like all service professionals, lawyers must be able to build rapport and trust, to understand themselves and others, to communicate effectively, and to solve problems. These skills are at the heart of client interviewing and counseling. This book is designed to help you demonstrate these skills in a professional setting and to lay the foundation for a career-long process of continual skills development. Reading a book, however, is never sufficient to learn a skill. Skills are acquired only through practice, reflection, and correction. This book provides the knowledge about these skills and suggests opportunities for practice and reflection. One of the exciting things about learning interviewing and counseling is that your everyday life also gives you ample opportunities for learning how to ask questions, to listen, to help clarify goals or devise solutions, and to build relationships.

An interview is a conversation between two people for a particular purpose. The primary purpose of most interviews is to gather information. Lawyers use interviewing skills in a variety of settings such as talking with witnesses to discover critical evidence or conducting a direct examination of an expert witness during a trial. An interview of a prospective client is also a vehicle for decision: both attorney and prospective client must gather enough information to decide whether to establish an ongoing relationship. Finally, some initial interviews also provide an opportunity for the attorney to counsel a client on how to achieve their goals.

In the materials in this text, we will focus on developing interviewing and counseling skills in the context of the initial interview with a prospective client. These initial interviews require all of the same skills as interviews in other settings, so this focus does not require that we sacrifice any core learning objectives for mastering interviewing and counseling skills generally. Moreover, the initial interview with a prospective client presents some of the most critical ethical decision-points in an attorney’s practice. A focus on interviews in this setting permits a close examination of these issues.

Learning Objectives

After working through these lessons and practicing the skills presented, you will be able to:

• Earn a potential client’s trust. This requires the ability to build rapport, to focus on and appreciate the client’s perspective, and to convey sufficient competence, confidence, and gravitas that the client will be comfortable with the attorney as their advocate.
• Use basic interviewing techniques. These include the ability to structure the interview effectively; use appropriate prompts and questions; listen actively and reflectively; provide nonjudgmental responses; gather complete and accurate information; and record that information accurately.
• Use basic counseling skills. These include the ability to recognize, name, and manage emotions; to assist the client in clarifying interests, goals, priorities, and attributed meaning; to identify potential legal issues and theories and communicate about these clearly and effectively with a client; to identify options for solutions that take into account the legal, financial, and social consequences for the client; and to assist the client in developing a preliminary approach to addressing their matter, including managing uncertainty and risk.
• Use reflection, self-assessment, and feedback to improve. This includes being able to identify how the student’s own culture, attitudes, and experiences may influence the interviewing process.
• Close an interview. This includes assessing whether to engage a client and ending the interview with clarity about whether the attorney and client are entering into an attorney-client relationship and next steps.
• Identify and appropriately address ethical issues. These include issues of confidentiality, conflicts of interest, candor, and limits on the attorney’s conduct.

A Note on Terminology and Format

Throughout this text, we will sometimes use the term “client” in the context of these initial interviews. As you will see, however, the individuals who come to you seeking legal representation are not yet “clients” but are technically “prospective clients.” Attorneys owe ethical duties to these prospective clients that are similar to, but more limited in scope, than the duties owed to clients.^[1] Nonetheless, for ease of reading, we often will refer to these prospective clients as “clients” throughout the text, with the understanding that these individuals do not become your true “clients” until that relationship has been created by court order, by agreement, or by your words or actions that cause the prospective client to reasonably assume that you represent them.

Likewise, in the interests of avoiding the clumsiness of his/her or the awkwardness of alternating these gendered pronouns, we will use the now-permissible “they/them/their” to refer to a subject of unspecified gender.^[2]

Each chapter begins with learning objectives. You can use these to assess your progress in mastering the skills and clarifying the perspectives that chapter addresses. Each chapter provides three different types of exercises:

“Check your Understanding” exercises test your knowledge of the materials presented. The text provides answers to these questions, either in footnotes (in the text version) or in interactive feedback (in the online version).

“Skills Practice” exercises provide opportunities for you to practice discrete skills. In some of these, you will be provided a video or written transcript of a mock interview for you to critique. Many of these exercises call for you to engage in role play. Try to work with different partners in these exercises so that you can have opportunities to interact with and get feedback from diverse perspectives. If you are playing the role of a client, be sure to prepare and play that role as authentically as possible. You will not only help your partner improve their skills but the very exercise of playing the role of a client deepens your skills of perspective taking and empathy.

“Reflective Practice” exercises ask you to prepare written reflections. These often will ask you to consider how your own personal experiences and identity influence your perspectives on the chapter’s materials. Reflective practice is itself a discrete skill that is valuable in improving not only your interviewing and counseling but your skills as an attorney generally.

References to source materials are provided in endnotes at the close of each chapter.