Chapter Ten – Special Challenges in The Initial Interview

Learning Objectives

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

• Be able to identify contextual factors that influence the interviewing and counseling process in diverse areas of practice.

The essential elements of an initial client interview are the same regardless of the area of practice: building trust, gathering information, clarifying goals, deciding on representation, and problem-solving. However, these general considerations may look slightly different in different areas of practice or in different settings. This chapter explores some of the interviewing challenges that are especially common in certain areas of practice.

A. How does an initial interview proceed when it is “just in time”?

In some settings, an attorney provides last-minute or emergency representation.^[1] Clients sometimes seek out an attorney to address an imminent threat to the client’s personal or business interests. Sometimes that crisis may be a result of the circumstances; in other circumstances, a situation may have developed into a crisis because the client was unable or unwilling to address the issue earlier.

These urgent requests for assistance may require a rushed and constrained initial meeting. They may provide very limited assistance, as sometimes the attorney responding in these emergencies is acting outside the core of their area of practice. The Rules of Professional Conduct in most states provide that an attorney is not violating the duty of competence in these circumstances but cautions attorneys to limit their representation to only that which is critical to meet the client’s immediate need:.

In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.^[2]

The paradigmatic case for “emergency advice” is the attorney receiving a call in the middle of the night from a client, friend, or acquaintance who has been arrested.^[3] However, emergency representation is not limited to criminal defense. The challenge for attorneys in these instances is that they will not have time to research the law and must know enough to at least be able to determine what facts are essential to address the client’s immediate needs without jeopardizing their long-term interests. Accordingly, while Rule 1.1 permits emergency advice and counseling, attorneys are often far more useful to the client in an emergency if they can simply preserve the status quo, secure some kind of delay in decisions, and help secure the assistance of an attorney experienced in the field.

In nearly any field of practice, however, attorneys can anticipate certain “emergency” cases that their clients might face. Attorneys in almost any field of practice might receive a call from an individual who is in circumstances in which they need to decide immediately whether a particular step will breach a contract or violate a law.

In other circumstances, an attorney may be called to provide emergency advocacy during or just before the client is to appear in court. This is most common when courts ask or appoint attorneys to step in at the last moment to represent a client. For example,

• An attorney may be part of a panel of attorneys who are appointed to represent parents in protective custody hearings (hearings that are held quickly after a child has been removed from their parents’ care because of allegations of abuse and neglect).
• A public defender may be appointed to represent a criminal defendant at a detention hearing and probable-cause hearing with little advance notice.
• An attorney may provide courthouse advocacy, assisting clients who have arrived at the courthouse unrepresented and whose matters involve a variety of civil or criminal matters.

These requests for help or appointments to represent clients may come with less than an hour to establish the attorney-client relationship, learn the critical facts necessary for the imminent hearing, and understand the client’s highest priority in that hearing.

An attorney in these circumstances must not neglect establishing rapport with the client but does so primarily by responding to the client’s immediate needs. The attorney must be warm but efficient. The content of these emergency representations will depend on the type of case and the client’s immediate needs, but this interview will nonetheless contain the essential elements of an initial interview.

In many of these emergency representations, the client is meeting the attorney for the first time at the same time that they are facing the imminent need for legal assistance. The attorney should introduce themselves to the client and provide a business card (physical or electronic). The attorney should learn the client’s name and use it when speaking with the client.

Often the physical circumstances in which an attorney is meeting a client in these emergencies is not ideal. The attorney may be speaking to the client over the phone rather than in person, or they may be meeting the client in a courtroom hallway or even a jail cell. While the attorney may not be able to make the client more comfortable in these circumstances, they must ensure that there is sufficient privacy, such as by asking if others can overhear a phone call or looking for a private office or alcove for the consultation.

Similarly, there is little time for the small talk to ease into the interview and permit the attorney and client to get to know each other as persons before diving into the legal problem. However, the attorney should, at least, sincerely ask the client how they are feeling and try to address briefly but directly their most immediate concern.

If the attorney is being asked to represent the client, the attorney should secure the client’s express consent to the representation. The attorney should provide a brief but clear explanation of the scope of that offered representation (e.g., for purposes of this hearing only) and fees (if any). While written fee agreements are not required unless they involve contingent fees, most states require a written agreement if the scope of the representation is limited. Many states provide forms for limited scope representation, in which the attorney can simply check the boxes of what services will and will not be provided.^[4]

Even if an attorney is appointed, they should nonetheless secure the client’s express agreement to representation. The court’s order of appointment will generally outline the scope of the representation, so a separate written agreement is unnecessary, but the attorney should still explain the scope of the appointment. The attorney should reassure the client that they are there to represent the client, not for any other interest. This is often best communicated in the context of an explanation of confidentiality or the attorney-client privilege.^[5] It is not uncommon for clients of appointed attorneys to believe that the attorney is a representative of the court or the state. This is especially so in circumstances in which there are multiple attorneys and other legal representatives in the matter, as for example, in child in need cases where the child may have a guardian ad litem, the state agency may have an attorney, there may be a juvenile officer prosecuting the case, and other caregivers may have attorneys.

The goals of a “just in time” interview is not to gather comprehensive facts, identify the client’s long-term goals, or advise on the overall case itself, but to meet the more immediate legal needs of the client. For example, a criminal defense attorney’s meeting with a client who has just been arrested is not for the purpose of laying out a defense strategy or gather comprehensive facts for the defense. Rather, the attorney’s goal is to secure the client’s immediate safety and release and to prevent the client from doing or saying something that could further incriminate them. The attorney must identify the facts that are necessary immediately, and those that can be deferred to a later stage or for another attorney.

Even under significant time pressure, the attorney should remain calm. A client in an emergency will already be feeling pressure—the attorney need not add to that by becoming frantic. Transparency and clear organization are even more essential in these emergency interviews than in an interview for a full representation. The attorney should outline clearly not only how they will be conducting the truncated interview but why they must be direct and succinct in their questions. Reminding the client of the attorney’s duty of confidentiality, the attorney can instruct the client to answer as directly as possible, without worrying about whether information is helpful or hurtful, important or irrelevant.

The counseling an attorney provides in emergency interviews is necessarily limited. The attorney must often focus only on preserving the status quo and preventing further harm to the client, rather than advancing their overall or long-term rights.

Interview Transcript for Evaluation

Because of the increasing prevalence of pro se litigants in civil matters, courts are increasingly providing courthouse resources for these individuals, including clinics to provide just-in-time legal assistance for certain types of cases. Consider what a rapid interview might look like in these circumstances:

Client: Can you help me? I have a hearing this morning and I don’t know what to do.

Attorney: Let’s see if I can help. I’m Ashleigh Taylor. What’s your name?

Client: I’m Monday Johnson.

Attorney: It’s nice to meet you Monday. I’m an attorney here at the Tenant Defense Clinic. We don’t work for the court. Our clinic is here to help tenants who are here for eviction hearings. The city pays us to defend tenants so there is no charge for our help. Is your hearing about an eviction?

Client: Yeah. I got behind on my rent.

Attorney: Okay, you’re exactly the kind of folks we try to help here. When is your hearing?

Client: I got a notice to be here at 9:00.

Attorney: Do you have a copy of that notice?

Client: Yeah. Here (handing attorney summons).

Attorney: Okay, well it looks like you are in Division 31. That judge starts right on time. It’s a busy docket so it’s hard to say exactly when your case will be called, but you need to be in the courtroom when it is. It’s 8:30 now, so we don’t have much time before you need to go in. I’ll need to ask you some direct questions to determine how best to help you. Everything you tell me is confidential. Is that okay?

Client: Yes, that’s fine. I’m really worried about this.

Attorney: Let’s see what we can do to help. So this paperwork you gave me says that you are at the Brookview Apartments, Unit 38A, is that right?

Client: Yeah, it’s a real dump but it’s the best I can afford.

Attorney: Do you have a subsidy to help pay?

Client: No, I applied but I haven’t heard back yet.

Attorney: Okay, and it looks like your landlord is evicting you for non-payment of rent—$1,200 for last month. Is that right?

Client: Yes, I lost my job two months ago and couldn’t pay the full rent.

Attorney: I’m sorry to hear that. Has the landlord said anything to you about being behind?

Client: Yeah, I got a note under my door telling me I had to pay or I’d be evicted.

Attorney: Have you been able to pay anything?

Client: No. I just got a new job so I can pay this next month’s rent and I can catch up on the rest if the landlord will just give me a little time.

Attorney: Have you talked to the landlord about this?

Client: I tried. But he’s impossible to get ahold of. I’ve been complaining about my ceiling for months, so he avoids me.

Attorney: Okay. Can you quickly tell me what the problem is with your ceiling?

Client: There’s been a leak in the bathroom ceiling for months. It’s caused mold, and my daughter’s asthma has gotten worse. I’ve complained multiple times.

Attorney: That sounds awful. When did you first complain?

Client: About three months ago, I called the manager and left a voice mail. Then I texted him photos.

Attorney: Do you still have the texts and photos?

Client: Yes, they’re on my phone.

Attorney: Have you contacted anybody other than the manager about this?

Client: Just my neighbors. I’m not the only one with a mess they won’t take care of.

Attorney: Okay, well, let me explain your situation and options. Your landlord has sued you in what is called a “rent and possession” case. That means he wants his rent or he wants you evicted. All he has to prove is that you had rent due, that he told you to pay it, and that you didn’t.

Client: So I’m screwed.

Attorney: Not necessarily. We basically have two options. One is to work out something with the landlord and the other is to try to defend you against the eviction. Ordinarily I’d suggest that we try to get the hearing delayed (that’s called a continuance) but this judge rarely grants continuances. Even if we could get one, you’d still be facing eviction, you’d just have more time before you were out.

So the first option we can try is to work out something with the landlord. We could try to negotiate a payment plan with your landlord that would allow you to stay or would give you more time to move. Given the way he’s responded to you, he might not go for that and it doesn’t really solve your ceiling issue, but it’s an option we can try. I would simply talk to his attorney about this before your case is called and if we work something out, we would just tell the judge that the case is dropped. Then it’s just a matter of your getting your back rent paid or finding another place to live. What’s most important to you right now—trying to stay in the apartment or having more time to move?

Client: Well crap. I would have moved months ago if I could have. I can’t afford to move right now, and my daughter’s school is nearby.

Attorney: Okay well then it sounds like we should see if the landlord would be open to a payment plan that would let you stay. If he doesn’t we can still try to fight the eviction.

The law says that if the conditions of your apartment are so bad that they are a danger to your health and safety, that can be a defense to nonpayment of rent. This is called a warranty of habitability defense. Because you notified the landlord about your ceiling before falling behind on rent and because he hasn’t done anything about it in a reasonable amount of time, you can raise this defense in your hearing. If we fight the eviction based on the problem with the ceiling, you might not only get additional time to get caught up on your rent, but it might even reduce what you legally owe, but there’s still risk that won’t work and the court might require that you pay the rent into a special fund called an escrow account until the repairs are done.

Client: That sounds good.

Attorney: Let me ask, besides being late on your rent, is there anything else that the landlord’s attorney might bring up as a reason for you to be evicted?

Client: I don’t think so. I complain a lot, but I’m respectful when I do—a lot more respectful than the manager is.

Attorney: Good. So let’s make sure we agree: I’ll try to negotiate a payment plan for you and if that doesn’t work, we’ll argue the warranty of habitability defense and ask that your rent be reduced until the ceiling is fixed. We’ll use your texts and photos as evidence. How much do you think you could pay extra to get caught up on your late rent?

Client: I just started a new job last week. I could probably pay $300 per week until it’s caught up.

Attorney: That’s very helpful information. When we go into the courtroom, you sit down and wait for your case to be called. I’ll talk to the landlord’s attorney. When the judge calls your case, let me do most of the talking initially. If the judge asks you questions, be honest but brief. Try to stay calm and focus on these key points: you are ready to pay to get caught up, you repeatedly notified the landlord about serious repair issues, and these issues affected your daughter’s health.

Do you have your phone ready with those texts and photos? We’ll need to show those to the judge and opposing counsel.

Client: Yes, I have them here.

Attorney: Excellent. One last thing—if we’re successful in reaching an agreement today, it’s crucial that you strictly follow whatever payment schedule we work out. Missing payments would likely result in immediate eviction. Do you understand?

Client: Yes, I understand. I’ll make the payments.

Attorney: Do you have any questions before we go in?

Client: What are my chances of staying in the apartment?

Attorney: I can’t promise anything. We’ve got a basis to negotiate. We’ll know more once I talk with the landlord’s attorney and see the judge’s reaction to our evidence. Are you ready?

Client: Yeah, I guess. Thank you.

Attorney: You’re welcome. Go ahead and head into the courtroom and have a seat. Don’t be nervous if you don’t see me right away—they call the docket out here in the hall, so I’ll know when your case is called and I’ll be right in.

B. How do you properly conduct an interview when the client has diminished capacity?

In some areas of practice, attorneys may regularly find themselves representing clients whose decision-making ability is diminished, whether by age, disability, mental health issues, substance use, or the emotional turmoil of family conflict. How should that fact impact your approach to an initial client interview? You should always proceed first with an assumption of competency. However, rather than beginning with the presumption that our clients are capable of participating fully in the interview and exploring how we can further assist our clients to recall and relate information or generate and select solutions, we may react with automatic assumptions of incapacity.^[6] We may presume, for example, that an individual has limited capacity simply because of their age, circumstances, or health status. However, our ethical standards counsel against this presumption. Rule 1.14(a) of the Model Rules of Professional Conduct, which has been adopted in all states except California, states that “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”^[7]

How are we likely to violate that ethical responsibility in the initial interview? First, we may be less inclined to accept that our client’s understanding of their situation is accurate. We may presume that these clients cannot understand complex situations or legal concepts, rather than working to make those situations and concepts accessible to the client as we would any other. With elderly clients, we may assume that memory lapses indicate global cognitive decline rather than normal aging. We may confuse communication difficulties with cognitive impairment. For example, a client whose brain injury has impaired their ability to speak may not have any less capacity for decision-making. With young clients, we may view inconsistent narratives or metaphorical descriptions as indicia of dishonesty or confusion rather than appropriate developmental communication. If we lack the understanding of a mental illness and how it presents in a particular client we might discount their narratives as irrational, especially when the client presents strong emotions in relating their experience.

Especially when it comes to respecting our client’s right to direct the objectives of the representation, we may be inclined to be more directive with these clients. Yet our standards of professional ethics dictate that we consider and respect the client’s autonomy, dignity, and privacy just as we would any other client. Yet we may mistake “eccentricities, aberrant character traits, or risk-taking decisions” with a lack of capacity.^[8] ABA Opinion 96-604 emphasizes that, just because an attorney thinks a client’s choice is a poor one, doesn’t mean the attorney should intervene and control the decision-making process.

Clients who regularly experience these types of bias may expect this conduct from their attorneys as well, and so may be less willing to trust and share fully their situation. That is why it is important to consciously monitor your reactions and question your assumptions when interviewing every client, but especially those clients about whom you may have concerns regarding capacity.

Just as in any representation, there is no substitute for getting to know your client well: their history, interests, and values. Assessing capacity may require the assistance of a health professional, but you need to make an initial determination of capacity even to make this choice to bring in the professional. Accordingly, if you have concerns about your client’s capacity to make decisions, you must have some understanding of what diminished capacity looks like, what causes it, and how it affects decision-making. If you are working with young children, you need to understand child development. If you represent individuals who have experienced trauma, you must become competent in the special demands of working with these individuals. Likewise special competency is required to represent individuals with mental illness, intellectual disabilities, or other health factors that could impact capacity. Model Rule 1.14 provides additional guidance for assessing competency:

In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reason leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.^[9]

Fundamentally, you should understand that capacity is not an all-or-nothing proposition. Capacity can vary according to time and circumstances. Impairments may be temporary or permanent or shifting. Similarly, decision-making capacity is not zero-sum. A client may have capacity to make certain decisions, need assistance in making other decisions, and lack the capacity to make still others. Distinguish between decision-making and execution of distinctions: clients may need support implementing decisions they are fully capable of making

With any client, you will want to work to facilitate the client’s ability to recall and communicate. Again, there is little substitute for getting to know the client to advance this goal. For example, suppose you know that a client’s memory may be stronger and more reliable in the morning, or in a familiar location. You therefore schedule interviews earlier or at the client’s home rather than your office. You already know that how you ask questions can affect the capacity of the client to recall and relate information. The stronger and more flexible your repertoire of questioning techniques, the better the information you will gather. For example, knowing that children may have difficulty relating events in a relationship to dates and times, you will develop alternatives to the more conventional “timeline” sequence of questions. Rather, when asking about calendar dates, you will link questions to significant events in the child’s life (“Was this before or after your birthday?”). Instead of asking “What time did this happen?” you will ask, “Was it morning when you eat breakfast, afternoon when you play, or nighttime when it’s dark?”

Just as we may assume that some clients’ capacity may be affected by their age or health, there are other situations when we may assume full capacity of our client, despite the presence of circumstances that interfere with their memory, communication, or decisions. In recent years, we have come to understand more fully that trauma, whether emotional or physical, presents distinct challenges that can impact the attorney-client relationship. Trauma-informed interviewing demands sensitivity, awareness, and specialized communication skills. Trauma can impair memory and exacerbate emotional reactions (either by causing withdrawal or heightened anxiety, mistrust, or fear). These reactions can interfere with the client’s ability to communicate, understand, or make decisions. Attorneys can make it worse with insensitive questioning or inadvertent pressure. Conducting trauma-informed interviews requires attorneys to establish the client’s safety and trust. Moreso than other interviews, the attorney must take the time to clearly explain the purpose of the interview and how information will be used. Likewise, a physically and emotionally safe environment is essential. As much as possible, the attorney should give clients choices about when, where, and how to communicate.

Key to the client’s safety and trust is client control. The attorney should recognize that the client may not be comfortable with the pace and depth of disclosures that the attorney may desire. The attorney must plan for the additional time needed for sensitive fact gathering. Rarely does the initial interview give an attorney the entire story, but this is especially so when those facts require revisiting traumatic experiences. Attorneys must be patient and empathetic listeners, recognizing nonverbal cues that indicate distress or dissociation, and responding by gently redirecting or pausing or even ending the interview as needed.

You will need to meet with a client more than once to acquire a truer sense of the client’s decision-making capacity. As the client gets to know you and gains confidence and trust in your representation, the client’s ability to function optimally will increase. To both increase efficiency and the client’s ability to function well, schedule more, but shorter, sessions. Additionally, attorneys should educate themselves on the potential effects of trauma on memory and cognition, recognizing that trauma survivors may recall events non-linearly or inconsistently without compromising credibility. Collaborating with mental health professionals can also enhance an attorney’s ability to tailor their approach effectively. Developing cultural humility, awareness of personal biases, and avoiding judgmental or confrontational attitudes are fundamental practices. By integrating these trauma-informed strategies into client interviews, attorneys can significantly improve the reliability of information gathered, reduce client distress, and uphold ethical responsibilities toward vulnerable populations.

One of the most significant challenges in the initial interview with an individual who may lack some capacity is that third persons will want to assist in the representation. There are distinct risks to allowing third parties to interfere with your client’s decision-making. Those third parties may not be operating to protect the client’s interest. Even where they are, unless third persons are necessary to facilitate communication, allowing these persons to be privy to your conversations with a client can waive the attorney-client privilege and may violate the attorney’s duty of confidentiality.

Whenever you are concerned about the capacity of a client, you should insist on meeting privately with the client in person. A separate private meeting will allow you to assess the seriousness of a competency issue and to educate the client regarding her role and her family member or friend’s role in the representation. If you conclude that your client is able to direct the representation, you can then proceed as you would any other representation, taking direction solely from the client and limiting third person involvement to that which is prudent and helpful to the client.

Skills Practice

Arranging for these separate meetings can be a challenge when a third person believes they are necessary for the representation to be effective. For example, suppose that an attorney has been contacted about a bullying incident at a local middle school. The prospective client and target of the bullying incidents is 13-year-old Jason. The preliminary intake indicates that Jason was beaten badly in the bathroom at the school and suffered a concussion. He has come to the initial interview with his stepfather Robert and they have just been shown into the conference room. Consider how this interview begins:

Attorney: Good morning, Jason and Mr. Wilson. I’m Jennifer Liu. Thank you for coming in today. (extends hand to Jason first, then Robert).

Robert: (jumps in before Jason can speak) We’re here about the bullying situation at Westlake Junior High. It’s been going on for months and the school isn’t doing anything about it.

Jason: (looks down, shifts uncomfortably in his chair)

Attorney: I appreciate that background, Mr. Wilson. Before we get started, I’d like to explain a few things about how these consultations work. First, I’d like to chat with Jason for about 15-20 minutes alone, and then I’d be happy to bring you back in to discuss how we might move forward together.

Robert: That doesn’t make sense. I know more about the situation than he does. Jason doesn’t always explain things clearly, and I need to make sure you get the full story. I’ve been dealing with the school administrators all along. I have all the emails right here. (pulls out folder) Besides, I’m the one paying for this consultation.

Jason: (looks increasingly uncomfortable, glances between attorney and stepfather)

Pick up the interview at this point. How would you proceed to secure a private meeting for Jason and build rapport with him separate from his stepfather’s influence but also preserve the stepfather’s confidence in your representation.

What if, when meeting privately with Jason, he insisted that he needed his stepfather present for the interview? You have two decisions to make at this point. First, is Jason’s capacity to act in his or her own best interest so diminished that he needs a third party to assist him? Again, remembering that capacity is not an absolute attribute, you may conclude that Jason may need some assistance early on in getting comfortable with the representation but not at a later stage after you have had an opportunity to build rapport. Second, you need to decide whether his step-father Robert is the adult who is best able to assist in his decision-making. This will depend not only on Robert’s legal relationship with Jason, but whether his influence over Jason is supportive or directive.

Here is where a little education about the attorney-client privilege might permit you to convince the stepfather of the need for at least some separate consultation. While Comment 3 to Rule 1.14 provides “When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client privilege,”^[10] there is no caselaw to back up that comment and the exception it provides relies heavily on the determination of whether the third person is necessary. Document this determination and limit third party input to only that which is indeed necessary.

In summary, the work you put into improving your ability to communicate with and counsel clients whose capacity may be diminished will benefit all clients. Curb cuts and ramps are designed to make streets and entrances accessible for those with limited mobility, but they benefit all of us in making our day-to-day mobility easier. Likewise, all of your clients will benefit from you adjusting your communications to improve your ability to build trust, to gather information rather than making assumptions, and to respect client decision-making autonomy. As one elder law attorney comments, “Remember that sometimes our client’s diminished capacity might be more of a reflection of our incompetency in adjusting to the emotional, physical, and physiological needs of the client.”^[11]

C. How do you conduct an interview with a client who is incarcerated?

Criminal defense practice presents several unique challenges for interviewing. In this section, we will focus on one particular challenge: conducting the initial client interview with a client who is incarcerated.

This setting makes all aspects of the interview more challenging. Consider the physical environment in which the interview will take place. Jails and prisons are the antithesis of a warm and inviting environment. Interview rooms are small (though perhaps larger than the 9×6 cell the client is confined to), minimalist spaces with blank walls of institutional colors and fixed furniture (bolted metal table and chairs). Surfaces are often scratched with graffiti; walls may show institutional wear. The room will either have no windows or small, narrow, reinforced windows. Harsh fluorescent overhead lighting can’t be adjusted. Background noise of PA systems, door buzzers, radio chatter, and other inmates echoes from concrete walls. The noise is constant. Rooms have poor ventilation.

You will have had to go through multiple security checkpoints before reaching the interview area. Correctional officers will be stationed nearby, occasionally performing visual checks. Time will be strictly limited. There will be clear restrictions on what you can bring. Many facilities prohibit staples, paperclips, and spiral notebooks and nearly all have strict limits on laptops, phones, or recording devices. Even if electronics are permitted, internet access will not be available.

Your client will likely arrive in prison wear, perhaps shackled. Interview rooms may have glass partitions, surveillance cameras, or guards within earshot. Attorneys may be restricted to communicating with the client through plexiglass or over phones. There will be limited desk space for spreading out documents and specific protocols for passing papers (often with officer inspection). The institution will have strict visiting hours and limited duration for visits.

These environmental factors will be stressful for you, but you can only imagine how stressful this experience is for the client, who is confined to a 6×9 foot cell with limited time outside for exercise and with no clear idea of when or if they will be released. Clients may be experiencing shock or sleep deprivation. Clients may be going through withdrawal from addictions or due to a lack of required medications. They may have been victims of violence or threats of violence within the prison.

How can an attorney build trust in such an environment?

First, the attorney should do what they can to ensure privacy of the consultation. Ensuring that conversations aren’t recorded or monitored, setting up procedures for sharing case materials while maintaining privilege, and managing the presence of correctional officers while preserving confidentiality are all challenges in an institutional setting. Where there are significant risks of a loss of privacy, the attorney should be judicious in the scope of their conversation.

Second, the attorney should begin with introductions just as in any client interview. The attorney must ensure that they are interviewing the correct client. Where the attorney has been appointed or a family member has engaged them, they should be sure the client understands who they are and why they are visiting with the client.

Third, the attorney may need to “flip the script” of the usual initial interview and focus on identifying the client’s needs and goals before gathering case information. When meeting an attorney for the first time while incarcerated, clients often have priorities shaped directly by the immediate stress and trauma of confinement. Experienced defense attorneys recognize that addressing these immediate concerns builds trust and creates space for the client to engage with more complex legal considerations as the relationship develops.

Accordingly, the first matters an attorney should ask about are basic needs. How is the client coping? Do they have any medical needs? What are their immediate concerns? Clients may prioritize discussing these immediate concerns over case details. Addressing safety threats or urgent health needs (medication access, treatment for injuries) may supersede legal strategy discussions. Similarly, some clients will not want to talk about the case until they have been assured that their loved ones know where they are and will be able to communicate with them.

In most counseling situations, attorneys seek to focus their clients on long-term as well as short-term goals. When meeting a client for the first time in a jail, prison, or other confinement, a crisis mentality restricts their ability to consider long-term consequences. Instead, you may need to focus on small, immediately actionable items to help the client regain a sense of agency. Often questions focused on the long-term goals of defense and sentence mitigation will sometimes be swamped by the client’s overwhelming focus on getting out immediately, sometimes at the expense of long-term case strategy. Some clients may initially express willingness to “admit to anything” just to secure release. Nonetheless, these clients may be skeptical of a defense attorney’s offer to assist with a plea deal, presuming that the attorney is providing this assistance in order to be rid of the representation as soon as possible.

Initial interactions may serve as tests of the attorney’s responsiveness and reliability. While attorneys in other areas of practice may place a priority on moderating their clients’ unrealistic expectations, the challenge in this setting is building an expectation that you can and will help.

Public defenders have special challenges in building client trust. Many criminal defendants may not view public defenders as “real attorneys” or may be suspicious of their loyalty. They may believe that, because their attorney is paid by the state, they are not truly on the client’s side. They may be concerned that the attorney’s view of their role is to facilitate the client’s plea bargain rather than defending them. Clients may not trust the competence of a public defender. In part this can be a “you get what you pay for” attitude. Other times, these clients may have heard of or had bad experiences in the past with public defenders, or they may know of the high caseloads most public defenders must balance. For whatever the reason, attorneys practicing as public defenders must be especially attentive to building a trusting relationship.^[12]

Some clients will “trust test” their attorneys to evaluate whether the attorney is genuinely committed to their defense. These behaviors stem from vulnerability, past experiences with institutional systems, and the power imbalance inherent in the attorney-client relationship. This testing might consist of testing the attorney’s ability to investigate the case. A client might intentionally change minor details in their story to see if the attorney notices and follows up or share verifiable information to check if the attorney investigates it. Similarly, the client may test the attorney’s responsiveness by making minor requests (e.g., “Can you check on my property in police custody?”) to assess follow-through or asking the attorney to convey information to family members, then confirming it was done.

Criminal defendants may be individuals whom society has already dismissed as broken, dangerous, or less worthy. These defendants will test for the attorney’s attitudes, observing if the attorney shows discomfort, judgment, or disgust when discussing the alleged offense and watching for subtle signs of dismissiveness, condescension, or impatience. If the client perceives the attorney as inexperienced, they may push the attorney to demonstrate their knowledge of the system and how to navigate it.

At the same time that an attorney must engender their client’s trust in their competence, they must maintain a strong sense of humility. Remember that your client is the expert in their situation, one you are unlikely to be familiar with. Adopt a learner mindset. Clients who have prior experience with the criminal justice system have hard-knocks lessons about how that system works. Do not be too quick to dismiss or correct their understandings. Don’t be afraid to admit that you don’t know but do assure the client that you will research or learn whatever is needed.

Understanding these trust-testing behaviors helps attorneys recognize them as rational responses to an inherently disempowering situation rather than mere resistance or difficult behavior. Attorneys who successfully navigate these tests—by demonstrating consistency, follow-through, honesty, and respect—can establish the foundation of trust necessary for effective representation.

When it comes to fact gathering in this setting, the limited time available for consultations in these settings brings into play all of the considerations of any “just in time” interviews discussed in section B of this chapter. The attorney will need to focus primarily on time-sensitive issues like bail, immediate defense needs, and imminent court dates. In gathering information to advocate for the client and begin the process of investigation and defense, the attorney will need to continue to keep trust building and client empowerment as core considerations. Criminal defense attorneys will debate whether and how to ask the client about their own culpability. In the end, however, you have little control over what your client decides to share. “They will tell you what they want you to know, regardless of what you ask.”^[13] All of the information we have discussed in section B of this chapter, relating to interviewing clients who have experienced trauma, will apply in this setting.

In an initial criminal defense interview, the attorney’s most important objective is to counsel the client in the strongest terms possible to do or say nothing that would incriminate them. This means warning the client not to talk to police, cellmates, or others. Some attorneys advise the client against “making a statement” but many clients will not understand that a statement can be as simple as orally answering a yes or no question. Other attorneys will advise their clients to simply remain silent,^[14] but silence is hard to maintain. Seasoned criminal defense attorneys may even use the phrase “Shut the f**k up” as the impact of such strong language is likely to make this advice both emphatic and memorable.^[15] Other attorneys, recognizing how difficult silence can be to maintain in the face of pressure to speak, advise the client to say “My lawyer told me not to say anything.”^[16] Along with this advice, the attorney must warn the client not to agree to searches, lineups, or other police investigative procedures.^[17]

The National Legal Aid and Defender Association, Performance Guidelines for Criminal Defense provide guidelines on the kind of information an attorney should prioritize in the first meeting:

(b) The Interview:

(1) The purpose of the initial interview is both to acquire information from the client concerning pretrial release and also to provide the client with information concerning the case. Counsel should ensure at this and all successive interviews and proceedings that barriers to communication, such as differences in language or literacy, be overcome.

(2) Information that should be acquired includes, but is not limited to:

(A) the client’s ties to the community, including the length of time he or she has lived at the current and former addresses, family relationships, immigration status (if applicable), employment record and history;

(B) the client’s physical and mental health, educational and armed services records;

(C) the client’s immediate medical needs;

(D) the client’s past criminal record, if any, including arrests and convictions for adult and juvenile offenses and prior record of court appearances or failure to appear in court; counsel should also determine whether the client has any pending charges and also whether he or she is on probation or parole and the client’s past or present performance under supervision;

(E) the ability of the client to meet any financial conditions of release;

(F) the names of individuals or other sources that counsel can contact to verify the information provided by the client; counsel should obtain the permission of the client before contacting these individuals.

(3) Information to be provided the client includes, but is not limited to:

(A) an explanation of the procedures that will be followed in setting the conditions of pretrial release;

(B) an explanation of the type of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense;

(C) an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;

(D) the charges and the potential penalties;

(E) a general procedural overview of the progression of the case, where possible;

(c) Supplemental Information:

Whenever possible, counsel should use the initial interview to gather additional information relevant to preparation of the defense. Such information may include, but is not limited to:

(1) the facts surrounding the charges against the client;

(2) any evidence of improper police investigative practices or prosecutorial conduct which affects the client’s rights;

(3) any possible witnesses who should be located;

(4) any evidence that should be preserved;

(5) where appropriate, evidence of the client’s competence to stand trial and/or mental state at the time of the offense.

Remember that effective advocacy is not simply about guilt or innocence. Most criminal defense is about sentencing.^[18] The very person-first approach necessary for building rapport and trust is also the most effective sentencing advocacy. The attorney should focus on the client’s talents and needs and connecting the client to a support network so that, if released, the court will be assured that the sentencing plan protects the safety of the community.

Obviously, the initial interview of an incarcerated client will rarely provide the defense attorney all of the critical facts necessary to craft a plan for investigation and a strategy for defense and sentencing advocacy. The attorney must at least use this first meeting to protect the client from further threats and build a foundation of trust.

D. How do you conduct an initial interview with in-house counsel retaining the attorney for an internal investigation?

When a larger company or organization hires an attorney, the initial interview may be with an in-house attorney who represents that company. This may be an attorney for a governmental unit (for example, a city or county attorney) or it might be in-house counsel for a corporation or non-profit organization. When the client in these instances is seeking representation in litigation or assistance with a specific transaction, the initial interview looks little different than an interview with any client. The attorney will proceed through the same steps as in any initial interview: building rapport, gathering facts, clarifying goals, developing theories and solutions, and selecting among these to determine whether and what type of representation results. In a wide variety of industries, an attorney is engaged for a third type of representation: to conduct an internal investigation regarding compliance with particular regulations. In many instances, this interview is not to determine whether an attorney-client relationship will be established: both the client and the attorney proceed from the assumption that the attorney will represent the client.

The challenge in these settings is remembering that the client is not the people with whom the attorney is speaking, but is the entity:^[19] the governmental unit, business, or nonprofit organization. Accordingly, the attorney must always pay attention to whether that in-house attorney has the authority to engage outside counsel and who will be directing the actual representation.

Just as in any other representation, there is little substitute for truly getting to know the client. Getting to know the client means understanding that entity’s history, mission, and culture. It also means learning about the people within the entity who have important leadership roles. The attorney should have clear information about reporting structures. The conversation should explore potential conflicts within the organization and identify stakeholders who may resist the investigation.

However, much of this work of learning about the organization will take place before or after the initial interview; the primary purpose of these initial interviews is to determine the scope of the representation and to develop a plan for conducting the investigation. Since the purpose of the representation will itself be fact gathering, the primary questions to be asked in this interview are designed to determine what questions or concerns the investigation should address. Just as in fact gathering in any other representation, the journalist’s questions will provide an effective framework in scoping the investigation:

• What? The nature of the compliance concerns should be outlined specifically: is a matter to be investigated solely from the perspective of compliance with internal policies or are their specific areas of law or external regulations of concern? If so, what is the nature of that law: regulatory, civil liability, or criminal liability? What potential areas of compliance are excluded from the investigation?
• Who? Who raised the concerns initially? Who has authority to direct the investigation? Will officers or directors of the entity be involved? Who are the employees and agents with whom the attorney should be meeting? Has a governmental body been involved thus far and, if so, how? Have lawsuits been filed or are they expected?
• When? What period of time does the investigation cover? Are there deadlines to be met in producing the results of the investigation?
• Where? Which division or department of the entity is involved? What is the geographic scope of the investigation? Which governing law will likely apply (local, state(s), federal, international?)
• Before? What communications and actions have already occurred?
• After? Will people get fired? Will results of the investigation be used in litigation? In what form will the final report be expected: oral findings, written report, presentation, recommendations for changes in policies or procedures? To whom will reports be directed or presented?

The bulk of the interview should be devoted to a determination of goals and methods (the “why” and the “how” of the engagement). Clarifying the client’s goals regarding the investigation is a primary part of the initial interview in compliance matters. Just as in any representation, a client may have multiple goals. The concerns may be to limit harm such as by protecting shareholder value, limit reputational harm, or limit the likelihood or success of lawsuits, regulatory proceedings, or criminal actions. Where the investigation uncovers wrongdoing, the goals may be to identify ways to remediate those wrongs or prevent recurrence in the future. Internal concerns will also appear, such as ensuring trust and fairness in the investigation or retaining key employees.

Just as you want to screen clients for those representations that you will later regret, part of the function of these interviews is to determine the client’s expectations and whether those expectations conform to your preferred approach to representing clients. The question of your relationship with your client is no mere philosophical matter in these circumstances. You must make it clear whether you are acting as an advocate (investigating matters as part of preparing to advocate on behalf of the client in litigation) or as a counselor (acting as an objective source of independent fact-finding and recommendations). This distinction is important, not only for determining the scope and approach you will take to the investigation, but also for determining whether and to what extent communications are protected by the attorney-client privilege.

If the client presumes that the attorney will pursue an investigation as an advocate, they will expect the attorney to focus on discovering those facts that support the company’s legal claims and defenses and minimizing or discrediting unfavorable facts. The attorney’s report or analysis will be structured so as to maximize attorney-client privilege and work-product protections. The client who has engaged an attorney to assist in compliance, however, will expect an objective, independent investigation, pursuing and presenting facts regardless of whether they help or harm the client. The attorney’s report or analysis will provide remediation recommendations and may ultimately produce findings that could be disclosed to third parties.

For example, suppose an attorney has been contacted by a pharmaceutical company that has discovered potential off-label promotion by its sales force. If the attorney has been retained to represent the client in defending the company in a regulatory action, the attorney will search for evidence that the company provided proper compliance guidance and will not search for broader causes or instances of regulatory misconduct. Contrast that with the expectations a client may have if they engage the attorney to assist in bringing the company into compliance. In this instance, the client will be more likely to expect that the attorney will thoroughly investigate all sales practices regardless of implications. They will expect the attorney to discover underlying root causes of the problems, such as cultural factors or deficits in the training or incentive structure. The attorney will provide recommendations for comprehensive remediation.

The role definition substantially impacts whether communications or findings will be shielded from discovery in litigation. If the attorney is engaged as an advocate in anticipation of litigation, communications will more clearly fall within traditional attorney-client privilege^[20] and work product protections will apply more readily. If the attorney is acting as a counselor in the investigation, however, the attorney’s communications may be challenged as business advice rather than legal advice, outside the scope of the attorney-client privilege.^[21] Findings and recommendations may be designed with the expectation that the client will wish to use these reports as evidence of their robust compliance efforts.^[22]

Accordingly, during the initial interview, the attorney must take care to probe the client’s expectations regarding the attorney’s role and the purpose of the investigation. This means clarifying the attorney’s independence boundaries and possible future role if the outcome of the investigation reveals misconduct or leads to legal proceedings. The attorney might ask, “If I find evidence of serious misconduct by senior executives, what process should I follow? Are there any reporting limitations you’re envisioning?” “Under what circumstances would you consider disclosing investigation findings to regulators? How might that affect our approach?”

Not only must the initial interview with an entity client seeking an investigation carefully delineate objectives, the attorney in these interviews must explore the means of accomplishing those objectives much more than with clients in other settings. While attorneys representing a client in litigation may discuss broadly their approach to legal theories and defenses, they are less likely to need to detail discovery and litigation strategy as part of the scope of the representation. However, this detail is far more critical in an initial interview determining the scope of a compliance investigation.

The attorney and client must create a concrete and precise description of the parameters of the investigation. Misunderstandings of the attorney’s responsibility are almost inevitable if the agreed-upon scope is simply a “complete investigation.” Rather the attorney and client must specify the specific allegations, time periods, and departments to be investigated and the relevant compliance standards against which the facts will be measured. “Scope creep” is one of the most challenging aspects of managing internal investigations. Without proper boundaries established during the initial client interview, investigations can expand uncontrollably, creating numerous complications. Scope creep occurs when an investigation gradually extends beyond its original parameters, consuming additional resources and time and expanding into unrelated areas. This phenomenon is particularly problematic in internal investigations because an investigation will often naturally uncover connected issues, resulting in pressures to broaden the inquiry as these findings emerge.

While you might be delighted to have this additional work, you may not be ready or able to take on these tasks. Without a clear scope of how you will conduct the investigation and what the expected products will be, either you or your client or both will be unhappy: costs can escalate unpredictably, completion dates become unreliable, and resources may be limited to be able to meet the expanded responsibilities. In sum, you need to not only clearly define what you will do for the client but what you will not do. You need to discuss how you will manage requests for changes in that agreement.

Because the attorney will be speaking with many different persons in the entity in an investigation, the attorney must establish clear communication protocols between outside counsel, in-house counsel, and other organizational stakeholders. The attorney and client must designate a single point of contact within the in-house legal team (typically the General Counsel or a designated attorney). The attorney and client should agree that all substantive communications about findings, scope changes, or significant developments flow through this channel first and create a regular update cadence. This communication protocol may require a classification system for investigation information: from highly sensitive findings (e.g., potential criminal conduct, executive misconduct), to significant policy violations or regulatory concerns, to less sensitive process improvements or minor policy violations. Written communications should have clear templates to designate their purpose in order to protect their status as privileged or work-product.

Communication protocols should also describe who and how employees will be contacted and interviewed. When meeting with employees and officers, the attorney must make it clear that they represent the entity and that their duty of confidentiality is to the entity not the person being interviewed.^[23] In the initial interview with in-house counsel, the attorney should discuss how the entity will reinforce that message. For example, in many organizations, the entity itself will provide the initial “Upjohn warnings” regarding the privileged nature of communications with investigating attorneys.

Counsel should explore in particular how potential whistleblowers will be managed, including establishing procedures for whistleblowers that protect confidentiality and prevent retaliation. Likewise, if a regulatory agency is already involved in the matter, the attorney and client should specify who communicates with these regulators and what information can be shared at different investigation stages. Finally, the attorney and client must discuss technological aspects of the investigation. Communication channels, whether for communication or for sharing documents, must be secure. By creating these structured communication protocols at the outset, outside counsel can maintain appropriate control over information flow while ensuring in-house counsel remains appropriately informed to fulfill their organizational duties.

Finally, an investigation requires working with often voluminous documents and communications. The initial interview should discuss immediate document preservation needs and legal holds and identify key custodians and data sources. The attorney should explore whether there are risks for potential destruction of evidence, and how those risks might be mitigated. Whether, who, and how electronic evidence will be gathered and analyzed must be part of any investigation plan.

As you can see, the initial interview in these compliance situations will challenge the attorney to clarify client goals and collaborate on problem-solving at an early stage far more than in other types of representation. When an attorney conducts these interviews well, they create the framework for a successful partnership with the client and effective representation.

Skills Practice

Suppose you have been retained by in-house counsel for a university regarding allegations of sexual misconduct by a coach in the school’s gymnastics program. You have asked the client what their expectations are regarding your role. The client answers, “We’ll want a thorough investigation. We want to know what happened. We need to protect the university’s interests.”

Practice with a partner how you might further clarify expectations with the client, depending on whether the client anticipates litigation and is engaging the attorney to prepare or whether the client is seeking an independent internal investigation in order to address any misconduct that might be discovered.

Evaluate your resulting agreement. Suppose after initial interviews, you note that several witnesses mentioned similar harassment by other coaches or in other programs. When you include this information in a preliminary report, in-house counsel responds that you should “review all harassment complaints from the past five years to identify patterns.” Did your scope address this eventuality? What if, after you complete your investigation and report, the client asks you to “draft new harassment policies based on your findings” or “design and conduct company-wide training.”

Chapter Ten Endnotes