Counselling: The Lawyer's Duty to Advise Rather Than Litigate

Regulation 4 of the NALSA (Free and Competent Legal Services) Regulations 2010, chapter 80: the front office is staffed by a retainer lawyer and para-legal volunteers, and a proviso allows a person with a Master's degree in Social Work, or a diploma or Master's in psychiatry or psychology, to be called to the front office when necessary. That proviso is the clearest statutory recognition in Indian law that some people who walk into a legal services office need something a lawyer cannot give.

Regulation 2(b) of the NALSA (Legal Services Clinics) Regulations 2011, chapter 160: a District ADR Centre, including a Nyaya Seva Sadan, provides facilities for counselling, mediation, Lok Adalat and legal services under a single roof. Counselling is named first, and beside the ADR methods.

Section 89 of the Code of Civil Procedure, chapter 600, is the other side of the same coin: the court's duty to consider whether a case should be settled outside it presupposes that somebody has advised the client on the options.

The interview: how it is actually done

MU sets this as a clinical topic, so a student should be able to describe the steps.

One, prepare and put the client at ease. A person who has never been in a lawyer's office is frightened. Explain what the meeting is for and how long it will take. Confirm confidentiality, which is the duty that makes candour possible.

Two, let the client tell the story their own way, without interruption. This is the step most often skipped and the most valuable. A lawyer who starts asking about limitation in the first minute will get answers to those questions and nothing else. The facts that decide cases are usually volunteered, not extracted.

Three, then ask questions, moving from open to closed. Begin with "what happened next?" and narrow to "was that before or after Diwali?". Fix the dates, because limitation depends on them.

Four, get the documents. Ask what is in writing, and ask for it. A client's account of a contract and the contract itself are frequently different documents.

Five, identify the client's objective. Ask directly: what would a good outcome look like? The answer is often not money. It may be an apology, the return of a specific thing, the continuation of a business relationship, custody arrangements that work, or simply an end to it. Chapter 630 makes the same distinction between position and interest.

Six, check for the things the client will not raise. Whether anybody is at risk of harm; whether a limitation period is about to expire; whether there is a criminal dimension; whether there are children.

Seven, advise. Which is the next section.

Eight, record. Note what was said, what advice was given, and what the client decided. That note protects the client and the lawyer both.

Advising on the options, including not suing

This is the heart of the topic, and the sentence to carry away is: the options always include doing nothing, and a lawyer who never says so is not counselling.

A complete advice covers, for each available course:

• what it involves, in plain words;
• how long it takes;
• what it costs, including the client's own time;
• the realistic prospects, stated honestly and not optimistically;
• what can actually be recovered, which is a separate question from whether the claim is good; and
• the consequences beyond the case, including on relationships and reputation.

The courses themselves are the whole of this book:

And the advice must include the things that remove choices: an arbitration clause, which sends the dispute to arbitration; section 12A, which blocks a commercial suit until mediation has been tried; and limitation, which can remove every option at once.

What the professional rules require

Counselling is regulated, indirectly but really.

Section 35 of the Advocates Act 1961 makes an advocate liable for professional or other misconduct, on which a State Bar Council's disciplinary committee may reprimand, suspend or remove him from the roll.

Section 49(1)(c) empowers the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by advocates. Chapter 780 works through the office side of those rules.

The duties that bear on counselling are the familiar ones: to advise honestly even when the client will not like it; to keep the client's confidence; not to accept a matter in which there is a conflict of interest; to keep the client informed; and not to encourage litigation the lawyer knows to be hopeless.

There is an obvious tension here and an examiner may want it named. A lawyer is paid to litigate and is professionally obliged to advise a client that litigation may not be worth it. That tension is the reason counselling appears on a clinical syllabus at all.

The boundary with therapeutic counselling

Be careful, because the word carries two meanings and MU's syllabus does not say which it intends. Treat both, briefly, and mark the line.

Legal counselling is what this chapter describes: interview, advise, help the client choose.

Therapeutic counselling is the work of a trained counsellor, psychologist or social worker, dealing with grief, trauma, addiction or the breakdown of a relationship.

A lawyer meets clients who need the second, particularly in matrimonial, family and criminal matters. Three rules follow.

Recognise it. A client who cannot get through the facts without breaking down may need help the lawyer cannot give.

Refer, do not attempt. Family courts have counsellors; NALSA's own regulation 4 proviso lets a person qualified in social work or psychology be called to a legal services front office; and legal services clinics can direct a person to appropriate support.

Do not let the legal work wait for it. Limitation runs regardless.

The honest summary for an answer: a lawyer counsels on the legal problem and refers on the human one, and knowing the difference is part of the professional skill.

A worked example

Rekha comes to a legal services clinic. Her husband died eight months ago. His employer has not paid the gratuity or the provident fund; her brother-in-law has occupied part of the house; and she is frightened of him. She begins by asking whether she can "file a case against everybody".

Step one: let her tell it. A lawyer who begins with "which case do you want to file?" will get one answer and miss two problems.

Step two: separate the problems. There are at least three: an employment claim against the employer; a property dispute with the brother-in-law; and a safety concern.

Step three: the objective. Ask what a good outcome looks like. It may well be the money and quiet possession of her house, not a judgment against her brother-in-law.

Step four: check the urgent things. Limitation on the employment dues; whether she is at risk; whether she has the death certificate, the employment records and the property documents.

Step five: is she entitled to legal services? Yes, under section 12(c) as a woman, with no income condition, chapter 70. And under section 2(1)(c) the service includes advice, whether or not any case is filed.

Step six: the options, problem by problem.

• The employer. A demand letter first. If unpaid, the dues may go to a Lok Adalat as a pre-litigation matter under section 20(2), chapters 110 and 170, where the settlement becomes an award deemed a decree. That is faster and cheaper than a suit, and employers commonly settle at such sittings.
• The brother-in-law. A civil suit is one route. But this is a family relationship that has to continue, and on Afcons, chapter 600, disputes relating to partition or division among family members and cases needing the continuation of a pre-existing relationship are normally suitable for an ADR process. Mediation should be advised, and a court could refer them under section 89.
• Her safety. A legal question in part, and in part not. The lawyer advises on the legal protections available and, under the regulation 4 proviso, the clinic can call somebody qualified in social work if she needs support the lawyer cannot give.

Step seven: what she should be told plainly. That suing everybody is possible and would probably be slow, expensive and bad for the family; that the employer's dues are the strongest and quickest claim; that the house dispute may be better mediated; and that she does not have to decide today, except about limitation.

Step eight: record it, and confirm in writing what she decided.

What beginners get wrong

Counselling is not the same as legal advice. Advice is part of it; the interview and the client's decision are the rest.

The options always include not suing, and a lawyer must say so.

The client's stated demand is not necessarily the objective. Ask what a good outcome looks like.

A lawyer is not a therapist. Recognise, refer, and do not let the legal work wait.

Counselling is regulated. Section 35 of the Advocates Act and the Bar Council's standards of professional conduct under section 49(1)(c) bear on it directly.

Quick revision

• Counselling: interview, identify the legal and non-legal problem, advise on the options and their consequences, and help the client choose.
• Statutory footholds: section 2(1)(c) of the Legal Services Authorities Act includes advice in legal service; regulation 4 of the 2010 Regulations lets a person qualified in social work, psychiatry or psychology be called to the front office; regulation 2(b) of the 2011 Regulations puts counselling beside mediation and Lok Adalat in a District ADR Centre.
• The interview: put at ease and confirm confidentiality; let the client tell it; open to closed questions; get the documents; find the objective; check the urgent and unraised; advise; record.
• The advice covers what each option involves, how long, what it costs, the realistic prospects, what is recoverable, and the consequences beyond the case. Not suing is always an option.
• Constraints to flag: an arbitration clause, section 12A, and limitation.
• Professional duties: section 35 of the Advocates Act 1961 on misconduct, and standards of conduct under section 49(1)(c).
• The boundary: legal counselling against therapeutic counselling. Recognise, refer, and do not delay the legal work.

Test yourself

1. How does counselling differ from giving legal advice? Legal advice tells the client what the law is. Counselling includes that but also the interview by which the facts and the client's real objective are identified, the setting out of all the options with their cost, time, risk and recoverability, and assisting the client to make an informed choice.

2. Which provision makes advice, without any case, a legal service? Section 2(1)(c) of the Legal Services Authorities Act 1987, which defines legal service to include the rendering of any service in the conduct of any case or other proceeding and the giving of advice on any legal matter.

3. A client insists on suing although the claim is weak and the defendant has no assets. What should the lawyer do? Advise honestly on the realistic prospects, the cost and time, and in particular on recoverability, which is a separate question from whether the claim is good, and set out the alternatives including doing nothing. The decision is the client's, but the professional duty is to advise plainly rather than to accept instructions uncritically.

4. What does regulation 4 of the NALSA (Free and Competent Legal Services) Regulations 2010 add to this topic? Its proviso allows a person with a Master's degree in Social Work, or a diploma or Master's degree in psychiatry or psychology, to be called to the front office as and when necessary, which is a statutory recognition that some people seeking legal services need support a lawyer is not qualified to give.

5. Where is the boundary between legal and therapeutic counselling? A lawyer counsels on the legal problem: the facts, the options and the consequences. Where a client needs help with grief, trauma or the breakdown of a relationship, the lawyer should recognise it and refer the client to a qualified counsellor, a family court counsellor or the support available through a legal services institution, while continuing the legal work, because limitation runs regardless.