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Summary Chapter 3
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Detailed summary of chapter 3 from the fundamental principles of civil procedure textbook
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CHAPTER 3Consultation Process
GENERAL:
A person will only consult with an attorney when the
matter becomes a litigious matter (ie: when it
becomes necessary to litigate)
Considerations an attorney must bear in mind when
deciding whether or not to represent the prospective
litigant:
∙ Whether he/she may act on behalf of the client?
(No conflicts of interest etc...)
∙ Whether to proceed by action or application
procedures?
∙ Whether to appoint an advocate to the matter?
(Only upon consent of client)
∙ Cost implications of the proceedings
∙ Whether he/she has the necessary knowledge
and/or expertise to deal with the matter
FIRST CONSULTATION:
Attorney must:
∙ Prepare
∙ Take proper instructions
∙ Take notes
∙ Make administrative arrangements
∙ Follow a structured 4-stage process
Stage 1:
∙ Introduction / meet and greet stage
, Stage 2:
∙ Listen to client’s matter
Stage 3:
∙ Questioning stage
∙ Checklist to be followed:
- Facts?
- Cause of action?
- Locus standi?
- Jurisdiction?
- Dates – prescription
Stage 4:
∙ Advise client
∙ Give them a basic outline of their case, what they
can expect etc..
∙ Tell client that you will conduct research
∙ Give an estimation of costs to client
General guidelines:
∙ Never overstate merits of the case
∙ Be honest to client about merits of case
∙ Rather under-promise and over-deliver
ADMINISTRATIVE ARRANGEMENTS:
Administrative arrangements DURING first consult
process:
∙ First step:
- Open a client file
- Names of parties should be clearly indicated on
outside of file
- Should include all the necessary and relevant
information of the client as well as of the
opposing party
, - Columns should be drawn up on the outside
and inside of the file so that a chronological
record of pleadings/notices received/served as
well as telephone calls etc may be kept
∙ Discuss and agree on fees – sometimes receive
and invoice client for a deposit
Administrative arrangements AFTER first
consultation:
∙ Attorney should address a letter to the client in
which his mandate is clearly confirmed:
- Mandate = what attorney is suppoed to do
- Contains T&C’s, fee arrangements, instructions
and strategies etc...
∙ Manage file properly:
- Proper practice management
- File notes
- Take instructions until settlement of matter by
court order OR termination of matter by client
FICA:
∙ Due to FICA these arrangements must comply
with the ‘Know your Client’ requirement
∙ Obligations of FICA:
- Verify client’s identity (ID/address etc)
- Keep a record of all transactions with client
- Report suspicious transactions
GENERAL ISSUES:
When may attorney withdraw as attorney of record
in the matter:
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