Académique Documents
Professionnel Documents
Culture Documents
1. Legal Counseling - According to Blacks' Law Dictionary, counsel means advice and
assistance given by one person to another in regard to a legal matter, proposed line of
conduct, claim or contention. As a matter of fact lawyers are also legal counsels. Counsellor is an
attorney; lawyer; member of the legal profession who gives legal advice and handles the legal affairs
of client, including if necessary appearing on his or her behalf in civil, criminal or administrative
action and proceedings.
Lawyers counsel the client in deciding how his problem can be sorted out under the laws. Legal
counselling is the process by which a lawyer communicates advice to a client.
2. Importance of Legal Counseling
To help the person talk about, explore and understand his or her thoughts and feelings and
workout that what he or she might do before taking action.
To help the person decide on his or her own solutions.
3. Importance of Lawyers in the Society
The lawyer has a particularly onerous and multi-dimensional role to fulfill. As expressed by
Mathew, J., A Counsel has a tripartite relationship: one with the public, another with the court, and the
third with his client. That is a unique feature. Other professions or callings may include one or two of
these relationships but no other has the triple duty.[1] The satisfaction of the obligations and
expectations arising out of these three relationships are frequently difficult to reconcile. The role of the
advocate in these three capacities requires a closer scrutiny.
The lawyer, as a professional, to some extent, acts on behalf of the client, and representing the
client. This is particularly relevant in an adversarial system of adjudication followed by common law
countries which is characterized by a neutral adjudicating authority, which, on the basis of the
arguments and evidence placed before it, arrives at a conclusion. The role of an advocate in an
adversarial system, therefore, is to represent the case of the client before the adjudicating authority.
The primary duty of the lawyer is to inform the court as to the law and facts of the case and to
aid the Court to do justice by arriving at correct conclusion. Since the court acts on the basis of what is
presented by the advocates, the advocates are under the obligation to be absolutely fair to the Court.
All statements should be accurate, and the advocate is under a sacrosanct obligation to ensure that he
does not, through any act or omission lead to the possibility of misrepresentation, or mislead the court
or obfuscate the case in any manner. Good and strong advocacy by the counsel is thus necessary for
the good administration of justice.
Viewed in this context, it can be said that the lawyer is indeed the channel through which the
general public can access the law, and avail of the protection of the law, in the shrine of justice.
4. What is considered a practice of Law
The celebrated case of Cayetano v. Monsod provided for a liberal definition of the practice of
law. A portion of the decision states:
any activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. To engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally, to practice law is to give notice or render
any kind of service, which device or service requires the use in any degree of legal knowledge or
skill.
Under the ABA rules, a person is presumed to be practicing law when engaging in any of the following
conduct on behalf of another:
(1) Giving advice or counsel to persons as to their legal rights or responsibilities or to those of
others;
(2) Selecting, drafting, or completing legal documents or agreements that affect the legal rights
of a person;
(3) Representing a person before an adjudicative body, including, but not limited to, preparing or
filing documents or conducting discovery; or
(4) Negotiating legal rights or responsibilities on behalf of a person.
Whether or not they constitute the practice of law, the following are permitted, according to ABA
rules:
(1) Practicing law authorized by a limited license to practice;
(2) Pro se representation;
(3) Serving as a mediator, arbitrator, conciliator or facilitator; and
(4) Providing services under the supervision of a lawyer in compliance with the Rules of
Professional Conduct.
Any person engaged in the practice of law shall be held to the same standard of care and duty of
loyalty to the client independent of whether the person is authorized to practice law in this
jurisdiction.
If, by representing the client, the lawyer will be violating the law or the rules of professional
conduct (such as if the lawyer is suspended from practicing law by the local attorney disciplinary
committee).
If the lawyer is physically or mentally incapable of representing the client.
If the client terminates his relationship with the attorney.
Otherwise, an attorney may withdraw from a case only for valid reasons, and only if it is shown
that the client's interests won't be adversely effected. Valid reasons include:
Conflicts of interest: Attorneys and their firms are not permitted to represent people or
companies that are adversaries. In some circumstances, the lawyer may ask for permission
(called a conflict waiver) from each party acknowledging the conflict and allowing the attorney to
represent both of each. If, after the attorney has agreed to represent you, he learns that he or
his firm also represents another person or company that is your adversary, and if the attorney
can't get a conflict waiver from both you and your adversary, then the lawyer must stop
representing you.
Client consent: If you give your attorney permission to withdraw from the case, then the
attorney can stop representing you.
Differing case strategies: Sometimes lawyer and client won't agree on the best approach for
handling a case. If you and your attorney are unable to reach agreement, then the attorney
should withdraw.
A client's failure to cooperate, communicate, or fulfill obligations: In order for an
attorney to provide quality service to his client, there needs to be regular communication and
interaction between the attorney and client. Your attorney may need you to answer questions,
provide documentation and otherwise assist him so that he can give the service that you need
and deserve. If, as a client, you fail to respond to your attorney's legitimate requests, then he
cannot provide you with quality representation, and may be permitted to withdraw from your
case.
Personality conflicts: It's human nature that sometimes people just can't get along with one
another. Your attorney is supposed to be your best advocate, but if there's a conflict of
personalities, it may be impossible for your attorney to give you the best representation
possible.
A client's failure to pay attorneys fees: As the client, you may have signed a contract when
you hired your attorney, and that contract probably outlined the anticipated cost of your legal
work, and your obligation to pay your attorney. You are hiring an attorney to perform a service,
and if you fail to pay for those services, then the attorney usually has the right to stop working
on your behalf. (This is true even if you don't have a signed contract.)
A client's unethical, fraudulent, or criminal activity: Your lawyer is bound by certain
professional and ethical obligations. As part of those obligations, your lawyer cannot help you
commit unethical, fraudulent or criminal activities. If your attorney tells you that you're trying to
do something illegal and you don't take his advice, the attorney can stop representing you.
budget. If your site looks amateurish and cheap, it reflects very poorly on your practice. If possible,
make sure your site is geared for mobiles and tablets too.
3. Keep overheads down
Never be tempted to try to compete with the big law firms; you cant. They have access to huge
budgets that a newly started solo practice does not. Keep it simple until you are more established. You
can manage perfectly well with a home office and consider using a business concierge service rather
than employing reception and secretarial staff. This of course means that some of the administrative
duties will fall to you to look after, but the huge cost savings will make this extra work worth it.
As the business grows, you could hire a paralegal to help you with specific jobs and take on a full-time
admin/receptionist and move to a modest permanent office premises. Allow your practice to grow and
grow with it; rather than starting big and trying to grow into it.
4. In-house marketing
Marketing is obviously very important in the strategy of any business, but its also very expensive to
outsource. Take the time to learn about content marketing and blogging for example and keep all your
marketing activities in-house. Check out the GoodBlogs Tegomedia site for advice and
tips.http://www.tegomedia.com
5. Avoid print advertising
Print advertising like billboards, newspapers and yellow pages is mega-expensive and not tremendously
effective unless you have a massive budget to throw at it. Stick to digital marketing, word of mouth and
personal recommendation.
6. Be technology savvy
Instead of spending out on a photocopier, scanner, printer and fax machine; buy one that does
everything. You can actually avoid copying altogether if you choose a machine that scans both sides of
a page. Many of your contacts will be happy with an emailed pdf copy of a document anyway, so you
wont even need to copy much which will save you time, paper and toner.
7. eBooks versus paper manuals
Legal books are very expensive. Luckily most of them can now be bought in ebook format so get
yourself a Kindle or an iPad and buy them in digital form. Not only is this considerably cheaper but you
can also carry your entire legal library with you at all times! They are also easily searchable and you
wont be filling your entire storage space with dusty legal tomes.
8. Use the Cloud
Practice management software and data storage is best achieved through using the Cloud. Not only is
this option much the cheapest and most convenient, it also means you have 24/7 mobile access from
anywhere.
9. Innovation
The beauty of running your own firm is that you have total flexibility. You can adapt your practice to
meet the demands of your clients, to incorporate new technology and to run in the way that you want it
to.
If you decide to try new ideas and systems, its your decision alone. Research new technology and be as
inventive and radical as you like; after all, theres no senior partner in the office down the hall to tell you
no. The ability to innovate is part of the fun and challenge of running your own business; dont be
afraid to embrace it.
Whilst its undoubtedly true to say that setting up your own legal practice comes with its own problems
and stresses, it does provide you with a degree of freedom that you would never get working for
someone else. Be focused, determined, work hard and reap the rewards.
x x x."
11. Pointers in Dealing with a client
Nearly every lawyer from time to time agrees to take on a difficult client, be it knowingly or unwittingly.
Although this client may task nerves to the breaking point, taking certain steps can help avert
disagreements and possible malpractice claims.
Lawyers are usually fairly clear about their role in a representation, but that role may appear to be less
clear when youre dealing with a difficult client. Your first imperative, then, is to get clear on who does
what.
Establish Your Role with the Client
Your role is to analyze a given situation and offer a solution to the problem presented, or a means of
achieving the goal the client has presented. Sometimes, there are several possible solutions or means,
all of which should be offered to the client. Dont forget that do nothing is always a possible solution,
too. Your role then is to advise on the consequences of the different courses of action. It is the clients
joband not the lawyersto decide which course of action to follow. After all, it is the clients life, or
business, or litigation, or estate thats at sake.
Difficult clients, however, are sometimes totally unwilling to make decisions about their legal issues and
want the lawyer to do it for them. Do not do it. Let some other influential person in their life help them
with the decision. Your job is to help the client understand the choices.
Be Thorough in Your Documentation
Document everything you possibly can, including phone calls, voice-mail messages and e-mail
messages. Confirm the clients instructions to you in writing, and confirm your instructions to the client
in writing. Include the possible consequences of various courses of action the client may be
contemplating. Save messages and instructions in your usual way as part of the permanent record of
the file. This is good advice for any representation, but its especially important for difficult clients. They
have a way of turning on the lawyer more often and with more damaging consequences than other
clients.
Thus, in this context, documenting means recording sufficient details to assist you in a future
disagreement. Remember, a record with insufficient details wont be of much use to you if theres a
subsequent dispute over who said what to whom and when. This means you should record at least the
following for all exchanges relating to the matter:
Inputting the information into a practice management software program can make this task less
cumbersome and more reliable than just jotting it down on paper.
In notes of meetings or conversations, its especially important to record not only the information the
client gave to you, but also the information and advice you gave to the client. In disputes between
lawyers and clients, this may be the biggest area of disagreementand one of the least documented.
Moreover, in litigation between the lawyer and client, where there is disagreement about the
information provided or the legal advice given to the client and that advice is not documented, courts
have often preferred the clients evidence on this issue.
Be Calm and Clear
It requires more patience than usual to deal with difficult clients. You will need to be calm and very clear
with them about everything. The more information you give in writingand as early in the
representation as possiblethe less likely there will be misunderstandings.
Also, explain what they should expect regarding their interactions with you and your staff. Be sure they
understand whom to deal with on which issuesfor example, whom to call to get certain types of
information, and when they need to speak directly to their lawyer and when they can deal with staff
instead. Many difficult clients want to deal only with the lawyer at every turn, which is expensive, not
very efficient and not often necessary.
Make patience your watchword. Do not let the difficult client turn you into the difficult lawyer, or the
unhappy lawyer, or the depressed, yelling or swearing lawyer. If you find you are becoming the difficult
lawyer, perhaps it is time to transfer the file to another lawyer.
Include Your Staff in the Plan
Usually, the staff will easily be able to identify the difficult clientthey may, in fact, know a client is
difficult before you do. But they also need to know the risks of acting for the difficult client, so they can
behave in ways that minimize those risks, especially in terms of documenting contacts, instructions or
information. Make sure they deal with this client the same way you do, using an extra dose of patience.
However, difficult clients are often much more difficult with the staff than they are with the lawyers.
Trust your staff and believe them when they describe the clients behavior. Deal directly and promptly
with the client concerning any inappropriate treatment, to ensure that the client understands what the
staff s role is in the representation and, more importantly, to ensure that the behavior is not repeated.
No client is more important than the people who work for you, so institute a zero tolerance policy on
abusive behavior toward your people.
Expectations
Expectations
Expectations
Expectations
about
about
about
about
service
time
costs
results
If the client has service expectations that are impossible to meetsuch as the lawyer always returning
phone calls within 15 minutes or performing significant work for freebe clear from the outset that you
cannot provide that level or kind of service. If the client has expectations that are unrealistic or very
expensive, such as having the matter concluded on a rushed timeline or all work done by the most
senior lawyer on the team, be clear about whether you can meet that expectation, or what alternative
will be provided, as well as the costs that will be involved.
Remember, too, the difficult client is also a client who is likely to be unhappy about fees, so you need to
establish mutual expectations concerning billing and payment procedures for your services. Its
especially important to bill clients with high service expectations frequently and regularly, and to
provide as much detail as possible, so they can understand the cost of those expectations.
However, the most essential thing to establish during discussions with clients is what results they want
to achieve. Clients who are unlikely to be successful in achieving their goals need to be told that
explicitly from the start of the representation, or at the earliest possible moment in the representation.
It is far more important to be honest with clients who cannot achieve their goals than it is with clients
who can. If the client cannot, or will not, accept your assessment of the matter, perhaps the client
should find another lawyer.