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

In one line

Counselling is the lawyer sitting with a client, finding out what has actually happened and what the client actually wants, and advising on the options, one of which is always not to sue.

In exam wording: counselling, in the sense in which it appears in a clinical legal education syllabus, is the process by which a legal practitioner interviews a client, identifies the legal and non-legal dimensions of the problem, advises on the available courses of action and their consequences, and assists the client to make an informed choice.

Why it closes Module III

Look at the order of MU's topics: foreign awards, conciliation, mediation and negotiation, and then counselling.

The first four are all things done after a dispute has been framed as a dispute. Counselling is what happens before any of them, and it is where the choice between them is made. A client does not arrive asking for arbitration. A client arrives upset. Turning that into a legal problem, and then into the right process, is the lawyer's first task and the subject of this chapter.

It is also the point at which the whole of this book becomes usable. A lawyer who knows Modules I to III and cannot counsel a client will send every case to court.

Counselling and advice are not the same

Legal advice is telling the client what the law is: your claim is time-barred; this clause is an arbitration agreement; the notice was bad.

Counselling is wider. It includes the advice, and adds the process by which the lawyer:

• finds out the facts, including the ones the client did not think mattered;
• identifies what the client actually wants, which is often not what the client first asks for;
• sets out the options, legal and non-legal, with their cost, time and risk; and
• helps the client decide, without deciding for them.

Nor is it therapy. A client in a matrimonial or family dispute may need emotional support, and the lawyer is not qualified to supply it. The boundary is at the end of this chapter.

Where it appears in the statutes this book teaches

There is no Counselling Act, but the idea appears in three places already met, and citing them shows the examiner this is a legal topic and not a soft one.

Section 2(1)(c) of the Legal Services Authorities Act 1987, chapter 80: "legal service" includes the rendering of any service in the conduct of any case ... and the giving of advice on any legal matter. A person entitled under section 12 can come for advice alone, with no case at all. That is counselling, funded by the State.