Lawyer-Client Relationship (India)
Part I: Formation of the Attorney-Client Relationship
- Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98. Under Article 39A, the constitution has made the right to legal aid a principle directive of the State.
- Includes offer by the client and acceptance by the attorney.
- The client furnishes consideration by payment or promise to pay.
The Duties of the Attorney
Lawyers owe a number of legal and ethical duties to both current and former clients. In India, these duties are created by state law and regulated by Chapter II of Part VI of the "Rules Governing Advocates". The specifics and nuances of those duties vary accordingly. However, the basic rules are consistent in most jurisdictions. Some of these are:
1) Duty of Undivided Loyalty to Client
- Lawyers owe a "fiduciary duty" to their clients. That means attorneys must act in accordance with principles of complete loyalty to the client�s interests. There is a complicated body of law that regulates attorney-client conflicts of interest, but the basic proposition is that an attorney cannot take any position in conflict with the client. A lawyer must avoid taking actions that are contrary to the client's interest.
2) Duty of Confidentiality
- Attorneys have a duty to maintain a client�s confidences regarding any information that the client wants kept confidential. This duty survives the end of the lawyer-client relationship. Thus, lawyers are forever barred from either disclosing client�s confidential information or using that information in a way that is inconsistent with a client�s wishes.
3) Duty of Competent Practice
- Lawyers have a duty to exercise reasonable care and competence in the performance of their duties during representation. This standard has been interpreted in different ways, but it generally means that attorneys are required to exercise the degree of skill, judgment and care that a reasonably careful lawyer would use under the same circumstances.
4) Duty of Communication and Shared Decision-Making
- Lawyers have a duty to inform a client of significant developments related to their case or representation and respond promptly to reasonable requests from the client for information. ?You should feel free to ask your lawyer � or a lawyer you are considering representing you � about any or all of these issues. This duty requires the lawyer to communicate with the client to determine the terms and objectives of the representation.
Duty of Competence and Diligence (American Bar Association Model Rules)
- "The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
- Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.
- i) "Promptness in representing a client";
- ii) "commitment and dedication to the interest of the client";
- iii) "zealous advocacy upon the client's behalf."
Part II: The Initial Attorney-Client Interview
Key Ingredients of the Attorney-Client Relationship
- Earned Trust
- Full Disclosure
Information to be Obtained in Initial Client Interview
- Facts of the case relating to your client;
- Any witnesses or co-defendants who should be found;
- Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;
- Any evidence that can be preserved;
- Whether your client is capable of attending the trial and his mental state at the time of the alleged crime
- Try your best to answer your client's most pressing questions;
- Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment
Client Interview Questions
1. First Interview
- Goal: Determine the basic facts and circumstances of the arrest
- "When were you arrested?"
- "Were you informed of the reason for your arrest?"
- "Were you informed of your legal rights?"
- Goal: Discover details of how client was interrogated
- "Were you interrogated within 24 hours after the arrest?"
- "Who interrogated you?"
- "How many people interrogated you?"
- "Were you allowed to review adequately and modify your statements?"
3. Requests for legal aid and family
- Goal: Determine whether client was given opportunity to contract attorney and family
- "Did you ask for a legal defender?"
- "Did anyone inform you that you could have a legal defender?"
- "Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"
- Goal: Determine details of how client was detained
- "Describe the place where you were after you arrest."
- "Were you threatened with physical abuse during and after the arrest?"
- "Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"
5. Information about the alleged victim
- Goal: Determine details of client's relationship with alleged victim and the alleged victim current status
- "Describe your relationship with the alleged victim."
- "Do you know the alleged victim's name, age, address, telephone number, and vocation?"
- "Does he have a criminal record?"
- "What are your feelings toward the alleged victim?"
6. Information about co-defendants
- Goal: Determine information about defendants and client's knowledge of/relationship with them
- "Describe your relationship with the co-defendants."
- "Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"
- "Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"
7. The Criminal Charges
- Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges
- "Do you understand the nature of the criminal charges against you?"
- "Do you understand the defenses you might have to the charges?
- "Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"
Behavior to Avoid in Conducting Interview
1. Leaking information about the case to the client, including information relating to written accusations and exposure;
2. Instigating the client to lie about his part in the case;
3. Lending your own cell phone to the client;
4. Giving material articles to the client in private,
5. Bringing a non-lawyer or the client's family members when meeting the client.
Part III: Interview Techniques
Closed vs. Open-Ended Questions
1.Open-ended questions usually require a more detailed answer than "yes," "no," a date or place.
- "Tell me about your family background."
- "Could you describe one of the arguments you had with your husband?"
- "Can you tell me about the first time you drank alcohol?"
2.Close-ended questions can be answered simply with a "yes," "no," or a simple fact.
- "Where were you born"
- "Did your husband hit you?"
- "How old were you when you started drinking alcohol?"
In general, you should ask open-ended questions because this will enable the client to share more information. However, you may want to use close-ended questions when you need to obtain specific information such as birthdays or identification numbers. You will also probably use more close-ended questions toward the end of the interview.
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers.
- Leading: "I'm sure you loved all of your children equally, didn't you?"
- Rephrased: "When your children were small, how were they different from each other?"
- Leading: "You never knew what Kumar and his friends were up to did you?
- Rephrased: "Tell me about your relationship with Kumar before he was arrested."
- Leading: "Kumar does not know how to read, does he?"
- Rephrased: "What kind of student was Kumar?"
Follow-Up and Probing Questions
- Nudging or Encouragement: Verbal encouragement in the form of "uh huh" and "go on" will help let the witness know that you are following him/her and are interested in what the witness is saying, and that you do not wish to interrupt him.
- Silence: You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking,perhaps nodding and wearing an expectant look on your face.
- Clarification: You can seek clarification from the witness when necessary. This lets the witness know that what he/she has said is important and you want to know more.
- Ask the witness to define his terms: "What do you mean by 'not very long?"
- Ask the witness to provide a more thorough answer: "Tell me more about that," "What else happened that day?"
- Ask for missing details: "I don't understand. How did Amir Khan het home from the hospital?"
- Ask for additional details: "What did you see Amir Khan do when the fight started?"
It is usually a bad idea to ask people "why" questions about life events. "Why" questions often place blame and put a witness on the defensive. Many witnesses simply do not know the answer to why something happened and will invent a seemingly rational reason for their behavior when, in fact, they have no idea what really motivated them. Such answers then become facts that are not particularly helpful to the client.
- "Why": "Why didn't you leave your husband?"
- Rephrased: "Was there a time when you thought about leaving your husband?"
- "Why": "Why did your husband hit you?"
- Rephrased: "Can you tell me what happened between you and your husband that day?"
- "Why": "Why do you think you married an alcoholic?"
- Rephrased: "Tell me about your relationship with your husband?"
Pursuing a direct line of questioning is usually not the most effective way of eliciting the witnesses' true account. Confronting the witness by pointing out all the contradictions in his account or inconsistencies with other witnesses' accounts can be a very serious mistake. For example, by asking direct questions about abuse, you may push the witness into a state of denial, which would make it difficult for him to disclose the actual situation afterwards.
- "Your said that you quit drinking two years ago, but your wife told me that you were drunk this past weekend. Why did you lie?"
- "You're just pretending to read that. You cannot really read, can you?"
Listening intently requires discipline and practice. Listening, unlike hearing, is not automatic. Listening to a witness answer questions during an interview is entirely different from listening to friends chat. In social settings, you are able to multitask while listening to a friend; for example, while formulating a response, you might also be observing your surroundings or having an internal dialogue that has nothing to do with the other person. During an interview, however, you need to focus on listening to your witness with total concentration and must really pay attention to what they are saying, instead of formulating the next question, looking around the room, or figuring out how the witness' account fits into your theory of the case.
Listen with an Open Mind
Sometimes we only hear what we expect to hear, rather than what was actually said. If you have already reached certain conclusions about who your witness is and what he will say even before the interview, you will unconsciously filter out information that is not consistent with your preconceived ideas. If the witness belongs to a certain group, you might make assumptions about him based upon your own impressions of that group. You might assume that the witness is racist, ignorant, provincial or superstitious. Once you think you can predict what the witness will say, you will not carefully listen to him. You may also mistakenly form a negative opinion of the person's value as a witness. If the witness' information does not conform to your understanding of the situation, you might dismiss it as an aberration, thus forfeiting an opportunity to develop an important relationship with the witness, one that could result in testimony helpful to your client's case.
Communication between any two people is a complicated process that can lead to both trivial and serious misunderstandings. During an interview, everyone communicates, receives and decodes information, and misunderstandings are liable to occur at every stage of the process. Since every piece of information is based on any previous information, any miscommunication that is not addressed will have long-term consequences.
It is essential that you, the interviewer, confirm that the witness understands your questions and that you understand his answers. In the following example, the interviewer is checking to see if he and the witness are discussing the same thing, because they each give different meanings to a word:
- Witness: "My father used to but me but treated Amir better."
- Interviewer: "Do you mean he didn't beat Amir?"
- Witness: "Right, only me, with his fists. He didn't do that to Amir."
- Interviewer: "Do you mean he never hit Amir at all?"
- Witness: "Oh, he would whip him, you know, with his belt."
- Interviewer: "You mean he would punish Amir by whipping him but not by punching him with his fists?"
- Witness: "Yes."
- Interviewer: "Can you describe one time when you saw him whip Amir?"
In this example, the witness has a specific meaning for the word "beat" (hitting using one's fists) that the interviewer needed to clarify. Interviewing requires mutual communication. Although your goal is to gather information, you, the interviewer, are also unconsciously and consciously communicating a great deal of information to the witnesses through your words, your clothing, your body language and facial expressions, and the types of questions you ask. It is essential that you refrain from using judgmental or critical language, whether verbal or non-verbal.
While conducting interviews of your client's family members, keep in mind that you are asking witnesses to go through a painful process to help someone they may or may not want to help and are asking them to provide information that may think is irrelevant to the case. They have the right to provide or withhold private information. People are usually not willing to share their most traumatic memories and secrets without deriving some benefits for themselves. The benefit has to come through the interviewing process itself. You must convey to the client's family members your desire to help and seek to understand and sympathize with them. In this way, the interview process can be a mutually beneficial experience.