Study Unit 1: Relationship with Your Client
Introduction:
One of the most NB legal relationships is between a lawyer & their client
Para 3 of Legal Practice Code (the Code): lawyers, candidate lawyers & juristic entities shall treat the interest
of their clients as paramount provided that their conduct shall be subject always to the duty of the court, the
interest of justice, the observance of the law & the maintenance of the ethical standards prescribed by the
Code & any other prescribed ethical standards.
o Highlights importance of relationship between lawyer & client.
When engaging a prospective client, one must consider whether one can accept their mandate & sustain the
necessary level of skill & time to their cause (necessary expertise)
o Various grounds upon which a lawyer can be unable/ unwilling to act & refuse to accept a mandate
(broader than grounds upon which an existing mandate can be terminated):
Potential conflict of interest
Many larger firms first conduct a conflict check (ask fellow lawyers if they’re aware
of potential conflict if the client is accepted).
E.g. someone in the firm is currently representing the opposing party.
Lack of expertise in the matter
Client gives unethical, unreasonable, conflicting or fraudulent instructions
Time available
Financial means (ito for-profit firms or if the client can’t pay ito for-profit firms)
o If a lawyer is unsure of whether one should accept a client, they should investigate further as it’s
harder to ‘fire’ a client than it is to accept them
One should only accept a client if you feel you have the necessary competence to deal with the issue.
Van Wyk v Lewis 1924: in deciding what’s reasonable, court will consider thegeneral level of skill & diligence
possessed & exercised at the time by members of the branch & profession to which the lawyer belongs
Ebersohn v Prokureursorde van Transvaal 1996: attorney should have necessary knowledge & expertise & in
executing his mandate, & should display care that’s to be reasonably expected of an average attorney.
Para 18.14 of the Code: Lawyers may decline offers of briefs in matters in which they believe they aren’t
competent to render professional services at the appropriate standard reasonably expected in such matters
or to discharge their duty of diligence, & when declining such offers counsel shall disclose reasons to the
instructing attorneys.
The Code references specific requirements/ principles to the level of care & diligence
Relationship with Client:
First consultation with client:
Always be courteous
o Make client feel welcome (clean office, offer refreshments, comfortable environment)
o Show interest & give them undivided attention
o No interruptions (e.g. phone calls, attending the emails, staff interruptions)
Consultations are often surrounding something personal/ emotional to the client
o Build mutual trust & confidence & demonstrate that you understand your client’s problem
Listen carefully, & give client a chance to tell their story
Don’t be aggressive & unnecessarily interrupt, but guide the client to provide necessary info
Plan in advance how you’ll conduct your first interview
o Depends on the type of person & the nature of the legal problem
o Take time to explain legal matters as simply as possible to client.
o Explain legal & consultation (fee) process & structure
o Explain the conflict of interest check that will need to take place.
o Manage clients’ expectations re: feedback timing & nature, further consultations, timeline estimate,
docs/ info needed.
Take instructions directly from client (know who they are)
o Are they the plaintiff/applicant or the respondent/ defendant?
It’s possible to refuse to accept a client’s instruction if they give conflicting instructions
Remain independent & don’t be intimidated by the client
Accepting the client:
You’re not obliged to act for a client unless you want to.
, Relevant considerations before accepting the matter: potential conflicts of interest, if a client’s instructions
involve potential fraud, illegality or other impropriety & if you’re competent to handle the matter.
o Serious doubt on a matter above – refuse client.
If you don’t have the requisite knowledge & experience to handle the matter, you should inform your client
give them the option to instruct another lawyer.
Lawyers must have reasonable competence in the performance of their work
Van Wyk v Lewis 1924: “Court consider the general level of skill & diligence possessed & exercised at the
time by members of the branch of the profession to which the lawyer belongs. The evidence of qualified
surgeons or physicians is of the greatest assistance in estimating that general level & their evidence may be
influenced by local experience; but I desire to guard myself from assenting to the principle approved in some
American decisions that the standard of skill which should prevail is that in the locality where the lawyer
resides. The ordinary medical lawyer should, exercise the same degree of skill & care in one place or
another. The fact that several incompetent careless lawyers happen to settle at the same place can’t affect
the standard of diligence & skill expected.”
Courtesy towards client:
Show that you’re interested in your client’s problem, even if you’ve heard the same story many times
Clients can be emotional & may require some courage on their part, specificly in family law matters.
Never be patronising or aggressive, it makes a bad impression on clients if you cut them off mid-sentence.
Give your client undivided attention during interviews. Ask secretary & staff not to come into room & no
phone calls.
When you’re unable to start the interview on time, explain why & apologise (in advance if possible)
J Fenton Concentrate on Service 1987: ‘An untidy desk, papers everywhere, & messages all over the place
don’t inspire confidence. Clients want to feel that the matter they’re discussing with you is your only worry
in the world. It’s hard to feel that in an environment where you’re surrounded by files relating to someone
else’s problems & don’t seem to be able to lay your hands on anything that’s vaguely relevant to the client
sitting in front of you.’
If interview happens in a conference room, ensure it’s booked in advance & check vacancy before entering.
Taking Time to Explain:
Don’t provide hurried advice – clients rush to acquire advice, but don’t let a client to make unreasonable
demands – manage their expectations re: timelines
o Never be afraid to say you don’t know yet
NB to make an accurate assessment of your client ASAP.
o E.g. If you deal with an experienced lawyer of a major firm, you don’t have to explain routine court
procedures.
o Clients generally don’t know much about the law or the legal system, which is why come to see you.
Tell clients what will be involved in resolving their legal problems.
From the outset, you should give your client an estimate of the likely costs
o This is a legal requirement in some foreign jurisdictions
o It’s vital that your client knows at the earliest stage if they can afford to lose.
Volunteering advice which you hope you can verify by subsequent research only leads to problems.
o If a client insists on obtaining a tentative indication as to what you think the advice will be, make
sure you’re as broad possible – clarify that although you think that may be the answer, your client
should wait until you advise them properly before acting on your advice.
Always ensure that your advice is correct & balanced rather than just what your client wants to hear.
o Remain independent & dispassionate & give advice that will withstand close scrutiny.
Insufficient to tell a client what a theoretical position is; you must draw attention to practical considerations
o Emphasise time & expense involved in obtaining judgment & that judgment is only worthwhile if the
defendant has sufficient funds to meet the judgment or is insured.
Code para 3.10: lawyer must advise clients at the earliest possible time on their likelihood of success &
mustn’t generate unnecessary work nor involve clients in unnecessary expense.
Simple Language Use:
Complexity of the language you use during interviews with clients depends on the client.
o Non-fluent English speaker: be very careful in your choice of words.
, Interviews with a lawyer is a stressful experience for some clients; combined effect of a strange environment
of a law firm & their legal predicament mean that they have difficulty understanding advice
o Keep your advice simple yet accurate & complete.
Do not make the mistake of shouting at clients who aren’t fluent in Erg’ fish when you sense that they don’t
understand you. Speaking louder won’t help them to understand.
o If the language barrier really hinders or prevents communication, either arrange an interpreter or
refer the client to a lawyer who speaks the client’s language.
Before you conclude the first interview, ensure your client has understood all items covered, especially
where it has not been possible to avoid using technical legal terms.
Instructions to be Complete:
Take complete instructions from clients – collect all relevant info
Take comprehensive notes of all material facts
Client is reactant to disclose the full facts: assure them that you’re obliged tore the confidentiality of all info
provided to you & that in order you to give appropriate advice, it’s essential for you to be told the whole
story.
Ask pertinent questions-your client isn’t as skilled as you in appreciating what is relevant.
o Inexperienced clients have a tendency to emphasise matters which they consider important, but
which are in fact irrelevant.
Proper guidance by you during an interview will shorten the duration of interview & this will reduce the cost
to your client.
o Enables prompt initiation of appropriate steps to resolve your client’s problem.
If there’s a lack of complete/ proper instructions, go back to the client to ask for further info & instructions
o Issue with incomplete instructions is that if the proceedings go to court & costs are ordered & taxed,
it’s unlikely that some costs won’t be able to be recovered.
Ensure that you obtain complete instructions from your client
o Arrange the interview time yourself, rather than asking your secretary do so.
o Leads to a better rapport with clients, who think that you care enough to phone personally
o Advise client to bring all relevant docs to interview & give examples of relevant docs if required.
o Ask client to write down NB things that they want to raise with you at the interview – less likely they
forget something.
Inform client of probable length of interview.
o Gives both of you a timeframe to work within
o May assist the client to focus on important issues.
o If there’s a max amount of time you can spend with your client let them know in advance.
Confirm instructions in writing afterwards with clients, especially ito complex legal issues
o Avoids potential misunderstandings & time & money being wasted for unnecessary services
o Allows you to ask client questions you overlooked at the first interview & request copies of any docs
your client didn’t bring to the interview.
Where your client limits your instructions to a specific aspect of any matter or transaction, confirm this in
writing so that there’s no misunderstanding later
o E.g. where a client has the chance to pursue several remedies & limits your instructions to only one
Instructions Direct from Your Client:
If you accept instructions from friends/relatives/persons purporting to act on your client’s behalf, you may
be inviting unnecessary complications.
o Determine why the prospective client didn’t approach you themselves
o Anything you say to the person approaching you’ll be conveyed to the prospective client – highly
unsatisfactory way of handling a consultation.
Classic trap: accept instructions from client’s spouse on the assumption that they had authority to represent
their spouse
Lewis Legal Ethics 1982: “In taking instructions the attorney must be reasonably satisfied of the client’s
identity, client’s capacity to instruct, authority of a representative instructor & the instructor’s
understanding, both of the instruction & of the nature & extent of the mandate. Failure in this respect will
have the consequences attendant upon negligence, but won’t necessarily amount to misconduct, which will,
however, arise if failure has the sting of impropriety inherent in recklessness or indifference to duty.”
, Be wary of accepting a new matter over the phone/email from someone you’ve never met unless you work
for a firm & the person is an established client.
o For confirmation of your instructions in writing & arrange an interview with the person who phoned
Evidence to Support Instructions:
Ensure you have evidence to support your clients’ instructions
o Are instructions inconsistent with evidence?
o Ensure you have all evidence before issuing court papers.
Since it’s not unusual for clients to have an emotional involvement with their matter, their instructions may
not be the best possible means of acquiring an objective statement of the facts.
NB ito things like the date accident/damage occurred on – if client gives you a wrong date & you rely on this,
you may later find that the cause of action has prescribed.
Try verify dates & other material facts from police records, doctor, hospital or ambulance records.
If client’s instructions are inconsistent with objective facts, it’s your duty to probe & query to determine the
real position & protect client’s interests.
o Don’t be unduly suspicious clients– it’s not role to pass judgement on your client; but the court’s.
You must have sound knowledge of the Financial Intelligence Act 2001 (FICA)
o FICA’s aim is to combat organised crime & deter money laundering activities.
o Identification & verification requirements aren’t limited to clients but extend to each person, or
entity, with whom a transaction is concluded.
Matters of Principle:
If a client wants to litigate as a matter of principle, ensure you receive a clear instruction in writing & inform
them of possible outcome of litigation
o If you decide to stand your ground & refuse to act, ensure a letter is sent to client confirming why.
If you tell your client that litigation will be uneconomical & result in them being penniless, a response may be
“It is a matter of principle”
Matters of principle often lose their appeal when the time comes for your client to pay your fees.
o Obtain costs in advance, or regular progress payments, as the ‘principles’ proclaimed at the start of
proceedings often disappear after an adverse result.
Maintaining Contact:
Maintain regular contract & provide regular feedback, but don’t do this just for obtaining fees
o Ask client to keep in touch with to advise you of any changes of email or address, employment,
phone no. & to pass on any additional info they may obtain.
o Keep clients informed of progress, especially for matters where several months elapse before steps
can be taken
o If a client’s irrational & phones every day for a progress report when you’ve told them that it will be
months before the case will be heard, tell the client what every phone call is costing.
o Explain to a client the detailed steps needed before an application can be made for a trial date &
how long it’s likely to take to avoid them thinking you’re delaying on purpose
o Avoid delay & respond promptly to any correspondence
o Don’t pass on a client’s matter to another lawyer in your office w/o first consulting your client.
Write to clients ASAP after meeting with them to obtain instructions, to confirm the matters discussed.
o Cape Law Society’s Council recommended that this procedure be followed, but a proposal that a
professional conduct rule be introduced didn’t find favour.
If you receive a settlement offer, even if it’s a bad one, you’re obligated to communicate the offer to clients
o If you reject offers w/o consulting clients, you’re acting w/o instructions & could be sued by them.
o Obtain client’s written confirmation of the acceptance/rejection of any offers.
Retainer Contract:
Contract by which one engages to act for the client ito the mandate
o Unless otherwise agreed, retainers are normally an “entire contract” whereby you promise to act for
them in a specific matter until completion & the client promises to pay you on completion.
o Formal manifestation of your relationship with your client
Client has various scopes to terminate mandate (wider than lawyer’s ability to terminate)
