Difference between revisions of "Lawyer-Client Relationship (India)"

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'''Leading Questions'''
 
'''Leading Questions'''
  
Leading questions often elicit unreliable answers.  Questions should be asked in a manner that encourages the client to give clear and reliable answers.  
+
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?"
 
*Leading: "I'm sure you loved all of your children equally, didn't you?"

Revision as of 10:38, 1 June 2010

Part I: Formation of the Attorney-Client Relationship

Court Appointment

  • Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.

Private Agreement

  • 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

1) Duty of undivided loyalty to client

  • Lawyer must avoid taking actions that are contrary to the client's interest.

2) Duty of Confidentiality

  • Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.

3) Duty of Competent Practice

  • Lawyers must represent client with reasonable care and competence, using 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.

  • 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)

(a) Competence

  • "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.

(b) Diligence

  • 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: Attorney-Client

Key Ingredients of the Attorney-Client Relationship

  • Honesty
  • Earned Trust
  • Full Disclosure

Information to be Obtained in Initial Client Interview

  • 1. Facts of the case relating to your client;
  • 2. Any witnesses or co-defendants who should be found;
  • 3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;
  • 4. Any evidence that can be preserved;
  • 5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime
  • 6. Try your best to answer your client's most pressing questions;
  • 7. 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

e.g.:

  • "When were you arrested?"
  • "Were you informed of the reason for your arrest?"
  • "Were you informed of your legal rights?"

2. Interrogation

  • Goal: Discover details of how client was interrogated

e.g.:

  • "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

e.g.:

  • "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?"

4. Detention

  • Goal: Determine details of how client was detained

e.g.:

  • "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

e.g.:

  • "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

e.g.:

  • "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

e.g.:

  • "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. Instigating the client to lie about his part in the case;
  • 2. Lending your own cell phone to the client;
  • 3. Giving material articles to the client in private,
  • 4. 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. e.g.:

  • "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. e.g.:

  • "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

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

  • 1. Nudging or Encouragement: Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.
  • 2. Silence: You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.
  • 3. 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.