"Counseling lies at the heart of the professional relationship between lawyer and client," Paul Brest, "The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers," (Issues 3&4)(Summer/Autumn1995).
In fact, counseling is part and parcel of effective legal representation. This is particularly true in the area of employment law where the relationship between employer and employee is fraught with varied legal and interpersonal challenges. Employment attorneys are often called on to provide quick answers to a myriad of questions:
- Should I terminate this employee?
- Should I grant this request for leave?
- What will happen if I take this course of action?
Providing such relatively on-the-spot advice can be daunting for an attorney with years of experience. This task is further complicated where a younger attorney does not have the advantage of client credibility that more seasoned attorneys possess. Younger attorneys may encounter clients that are reluctant to heed their advice. While it is true that client counseling becomes easier as an attorney gains experience, there are a number of ways to ensure effective client counseling as a young attorney in area of law.
Understanding Client Objectives
An attorney is charged with solving specific problems for clients while simultaneously taking stock of and addressing client concerns. Clients have varied and often competing interests—economic, legal, social and emotional; to effectively represent a client and build capital with a client you need to explore these interests through active listening and asking the right questions. An attorney's ability to actively listen is one of the most important skills in a lawyer's toolbox. At times, clients are less forthcoming in their goals and motivations (which are not static) and their true intentions must be carefully identified from the words that they use. Asking the right questions and thoughtful listening provides an opportunity to ferret out less critical motivators and identify true objectives.
To illustrate, client X, who has an employment-related legal issue calls you and says the following: "These eight employees are not meeting my performance expectations. They are draining my profitability and their work is abysmal. I would like to terminate them for poor performance."
After a few follow-up questions and corresponding responses you gather that the company is in a difficult financial situation and the motivation behind the potential separation is largely economical. You then state, "What I am hearing is that the business' profitability is a concern for you" and explore the possibility of other solutions, perhaps a reduction in force if the circumstances so warrant. Having accurately identified a concern that was not necessarily explicitly stated will earn you credibility and assist in building a rapport with the client that will aid in effective client counseling.
Younger attorneys have a tendency to sit quietly in the passenger seat and allow more senior attorneys to lead the charge on a matter. If you have thoughtful and helpful observations and suggestions, do not shy away from sharing those impressions. You will feel more comfortable sharing these observations if you are well prepared. Prepare for all client interactions by reviewing and analyzing case files, demonstrate mastery of relevant facts, update legal research to determine any new decisions of note that may impact the client's case. Speak up on calls and during in-person meetings, share your insights, and engage the client in discussion about their business. While doing so, be careful not to engage in puffery or try to "sound like an expert." Be yourself.
Play Devil's Advocate
Like most people, clients do not want to be told where they went wrong or how they could have handled a situation differently. An engaging and less off-putting way of achieving the same goal is to play devil's advocate. First, walk through the client's scenario and point out all the helpful facts and strong legal defenses. Then play devil's advocate and discuss the scenario from the other side's vantage point. Engage your client in this exercise and ask the client to counter the helpful facts and strong legal defenses you previously highlighted. This exercise allows you to educate the client on legal issues without detracting from your role as a zealous advocate.
Draw On The Experiences of Your Colleagues
Effective client counseling does not have to take place in a vacuum. Sound legal advice requires that attorneys draw on personal experience or the experiences of colleagues, legal knowledge and skill to craft creative strategies and solutions that will help achieve client goals. Seek out advice from your colleagues and ask them for suggestions in strategic counseling.
Know When To Defer
Finally, if you are unsure about an issue or do not have an immediate answer to a client question, do not misstate the law or guess, tell the client that you will look into the issue and get back to the client. Very seldom will you be asked a question that requires an on-the-spot answer. It is expected and customary to tell a client that you will get back to him or her after you have had an opportunity to research the issue. Fewer things are more unsettling than a needless quick and incorrect answer.
In conclusion, preparedness and honesty is key to effective client counseling. Arm yourself with helpful information, engage with clients, seek advice from colleagues, and most importantly, listen actively to clients. •
Charlene A. Barker, an associate at Obermayer, Rebmann, Maxwell & Hippel, concentrates her practice on employment and labor law litigation, defending employers in federal and state court in a wide variety of labor and employment matters. Contact her at email@example.com.