In Part 1 of this comment (see “Skill Sets # 12: Beware the Bear” ) I addressed the moment when we move from interviewing to counselling. I stressed the importance of ensuring that our junior colleagues understand the importance of focusing on what is both reasonable and realistic and that to do so they must, appropriately, control the content and pace of the discussion. I noted that clients can be like hunters in the woods, seeing and hearing only what they want to see and hear. The goal of every client is to get an answer to the issue they face as quickly, and definitively from their lawyer as possible. Knowing this to be so, it is important that we advise our colleagues not to move into the counselling phase too early.
In our mentoring to this effect, we can assist by pointing out that an interview starts as a fact finding mission, initially gathering both important and unimportant facts. This involves the ability to control without appearing to control, and to push without appearing to push. In the end the aim is for a reliable understanding as to what the client wants, what is reasonable, the steps involved, and what the risks if any are. When we enter the counselling phase, we stress that counselling is not simply doing what the client asks be done; counselling is understanding the interest and motivations of the client, framing them appropriately and, supported by an informed opinion, leading the client to what in all the circumstances we feel is best.
I recall the well-known statement attributed to Donald Rumsfeld, then US Secretary of Defense to the effect that (February 2002):
“There are known knowns; there are things we know we know.
We also know there are known unknowns; that is to say we know there are some things we do not know.
But there are also unknown unknowns — there are things we do not know we don’t know”
When I first came across this, I had no difficulty with known knowns, or known unknowns, this seemed quite clear. But I did have some difficulty with unknown unknowns, I found this to be redundant. However, in returning to this statement I appreciate that unknown unknowns are not a puzzle at all:
So, okay. In the practice of law, we are consumed by the thirst for, and the attainment of knowledge. In responding to questions from our clients, known knowns are embraced. We are comfortable providing advice and counselling on things that we know. Questions that involve known unknowns are researched and investigated and with appropriate care, converted to known knowns. But it is the questions from our clients that ask us to predict outcomes, events, circumstances or consequences that are most troublesome. And by a large margin, that is what our clients are asking us to do, to plumb the unknown unknowns.
And that is why the intersection of interviewing and counselling must be handled with care. Opinion and advice must not be given until we know what we need to know.
Assistance from the Rules of Professional Conduct
The Rules of Professional Conduct play the important role of informing us of best practices in what we do. As mentors, we should ensure that our younger colleagues review the structure and content of the Rules. One thing they will find in doing so is that many of the rules are fundamentally apposite to the interviewing and counselling role, providing the framework and the tools to control the Bear. From this perspective two rules stand out:
- 3.1-2 A lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.
Commentary : As a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal matters to be undertaken on the client’s behalf.
- 3.2-2 When advising clients, a lawyer shall be honest and candid.
Commentary : The lawyer’s duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.
Seeing Is Believing
We can assist our junior colleagues in applying these and other best practices by bringing them onto our files and into our interviewing and counselling sessions as early and as often as possible. We can do more than simply tell our colleagues, we can show them how we structure our interviews by discussing with the client at the outset our role and the client’s role firmly and without qualification. And we can do more than instruct but show our colleagues how we determine the right moment to review with the client our understanding of the facts and issues and the clients objectives. We can give them first-hand knowledge of how carefully we move from interviewing into the counselling stages, and how, again, we ensure that we know what we need to know.
And with our continued guidance, our colleagues will become increasingly comfortable with applying their own experience, growing expertise and judgment to the mix.