Chapter 8: Research, Writing & Communication in Law Practice
50 8.2 Oral Communication in a Direct Client Service Externship – from Phone Call to Intake
Gemma Smyth
Introduction
This section will be helpful for students working in a direct client service context. Keep in mind that each law firm, clinic or other legal workplace will have their own specific ways of managing intakes and interviews. They will have their own precedents and processes. This section contains helpful introductory information, but students should always defer to their specific workplace practices and protocols.
Oral communication (as distinct from oral advocacy) typically begins from the moment a client contacts a lawyer and is the lifeblood of a lawyer-client relationship. Each firm, clinic, or other worksite will have specific approaches to communicating with their clients, but below are some general tips about oral communication in the workplace.
There are many excellent resources on oral advocacy that are far beyond the scope of this text. Each placement site will also prepare you for appearances. However, many areas of law are experiencing the “vanishing trial” phenomenon such that negotiation and mediation are far more common than litigation. Again, this very much depends on the context of practice.
Phone Calls
The phone call is a common way for clients to make first contact with a firm or clinic. Even when clients fill out an online form, it is still often followed by an initial phone call. Keep in mind that some clients do not have a phone, and if they do there are often issues with data, wifi access, battery life, and so on.
Some firms and clinics have a person who answers the phone and does the administrative work to set up an intake, but sometimes students do this work as well. There are many very useful lessons in doing intake. Students will learn how to speak to someone in crisis, how to discern whether the legal matter is one that the clinic can handle, and how to ensure the LSO Rules are followed.
Typically, clients phone to figure out whether they can be helped. If students are given the task of answering phones, using professional active listening skills, plain language, and remaining calm are key skills. The essential piece will be figuring out if the legal matter can be handled by the clinic. This can seem easy but can be challenging, especially if their are income cut-offs or other administrative eligibility criteria. Clinics or firms will often have checklists to help students doing phone intake. Students will not be giving legal advice. Referrals might be possible. If in doubt, getting the person’s contact information, or putting them on hold and seek help from a more experienced colleague.
There are many firm and clinic practices that also protect clients’ safety on the phone. You might wish to ask if the client can take calls on a certain number and has access to a confidential, private space. The client may in fact be talking about a legal matter involving someone they live with. Also keep in mind that some people are calling from a pay phone or borrowed cell. In those cases, setting a time to call them back will be important (rather than assuming they can answer the phone at any time). The clinic or firm will also have a conflicts check system of some sort. It is important that this conflicts check is done prior to meeting with the client.
In most cases (pre-Covid), the client will attend the office for an intake. Sometimes, brief service can be provided over the phone. Again, each workplace will have its own approach. Reviewing intake policies and forms before conducting a phone or in-person intake is essential.
Intake Interview
After a clients sets an appointment, they will meet with the student (or the student and lawyer) for a first intake. Most firms and clinics have specific intake interview protocols. Some have a check list to follow. If they do not, students should ask for guidance and preparation before a first interview. In all cases, students will first observe the lawyer conducting an interview. This is a rich opportunity to gain insight into the administrative aspects of conducting an interview, as well as the interpersonal skills used by the interviewer.
Lawyers have different interview styles. Some jump immediately into explaining retainers and other paperwork. Most experienced lawyers open up an interview with a general question such as “what brought you here today”.
See below for more information about legal interviewing. Keep in mind that each clinic or firm will have their own approaches to intake.
Retainer Agreements
A retainer agreement (sometimes also called an engagement letter) is a document written by the lawyer or law firm that sets out the services to be provided to the client and the terms under which those services will be provided.
The scope of a retainer usually sets out a few key elements:
- the client’s specific goals and legal services to be provided,
- the key steps in the legal matter,
- the limits to legal representation of the client,
- the expected completion time, and
- the likely results of the matter are specified.
In a clinic context, some retainers include specific confidentiality provisions specifying that cases are discussed in the context of a learning environment. For publicly funded legal services, clients typically do not pay an hourly rate or lump sum, but they might be responsible for some disbursement fees or other costs.
For the purposes of the interview, students should be familiar with the retainer agreement and be able to explain it in plain language to the client. The retainer is an important document that sets out the legal relationship between the lawyer/firm and client. Often, a lawyer will explain a retainer agreement part way through an interview or at the end when they fully understand what services the client is seeking.
There are different types of retainers depending on the matter to be completed. Some of these are reviewed below. Keep in mind that each firm or clinic typically has standard form retainer. Reviewing this retainer in advance and being able to explain it in plain language is very important. If you have questions about clauses in the retainer, review this with your supervisor in advance.
Limited Scope Retainers
Limited scope retainers allow a lawyer to provide limited services to a client, such as representing the client for only part of a legal matter. This form of a retainer has become more popular given many clients’ inability to pay for full legal services. When used effectively, a limited scope retainer can limit how much the client pays, and can be of significant, targeted support for specific parts of a legal matter. LSRs can also support clients to feel more engaged in their legal matters.
As noted by the Law Society of Ontario, common pitfalls for lawyers using limited scope retainers include:
“Failing to check for conflicts of interest.
Failing to conduct a competent investigation of the facts and issues in the client’s matter.
Accepting limited services that are unreasonable or inappropriate for the client or client’s legal matter.
Failing to clearly outline what tasks the lawyer or paralegal will be responsible for, and to ensure the client understands the limits of the services provided and/or the consequences or risks associated with those limits.
Providing additional services outside the scope of the retainer without amending the existing retainer or executing a new retainer.”
Collaborative Law Retainers
A collaborative law retainer sets out the unique nature of collaborative practice, which entirely precludes going to trial. This practice typically occurs in family law. Should clients need to litigate, the retainer requires that they seek out new counsel. This form of a retainer acts as an incentive for collaborative settlement action. Statements of “I will not be your [lawyer] of record, except” are common phrases. This link takes the reader to an example of a collaborative law retainer.
Post Interview
After the interview, many lawyers send confirmation letters that set out the client’s narrative and what they want from a legal matter. Some letters dictate this letter during the interview itself. Others take notes and type it afterwards.
As noted elsewhere in this text, many claims against lawyers arise due to miscommunication or lack of communication between the lawyer and client. One way to minimmize this is by having a tickler system to connect with clients on a regular basis, even when nothing is happening with their file. This can at least help clients know the legal matter is important and on the firm’s radar.
A Step-by-Step Introduction to Working with a Client in a Legal Clinic Context
Establishing a Solicitor-Client Relationship
- First, the clinic must ensure there are no conflicts of interest.
- Second, the clinic must ensure that the type of matter is one that the clinic handles.
- Third, the clinic must schedule an appointment with the client at their home or at the office.
- If the intake is done over video or phone, ensure the client has access to the required technology.
- If needed, inquire about use of a translator or interpreter.
Reflection Questions
- Many clients face barriers when trying to access legal services. For example, mobility difficulties may prevent a client from physically attending a clinic. Transit might be unaffordable or impossible for clients. English (or the language spoken at the clinic or firm) might be an additional language for a client. What might be done to alleviate this barrier and others like it?
- What types of matters does your firm or clinic handle? How do clients know?
- Intakes are sometimes presented as a “step by step” type process, as above. In reality, people often benefit from the chance to “vent”. Very good listening skills can sometimes ascertain valuable information about the nature of the problem(s) and any challenges the client might be experiencing. There is sometimes a fine line between “venting” and going beyond the scope of what is possible in an initial call. There is also some danger of inadvertently creating a conflict if the person on the other line is, for example, the former spouse of a client in a family matter. What practices do you think are helpful for a good and ethical intake call (before a retainer is signed)?
Conflicts of Interest
Reflection Questions
- In this case, Ms. Jones is referred to another clinic. She doesn’t object; however, keep in mind that clients have often been referred to many different service providers. This is called “referral fatigue”. Basically, clients become discouraged, tired, or simply run out of time or money in the quest to find supports. What could Omair have done differently – if anything – to improve the chances that Ms. Jones would find a solution to her problem?
- What could Omair say if Ms. Jones asked for the reason the clinic could not take the case? What duty would Omair be breaching if he told her about the clinic’s involvement with Mr. Bennett’s case?
- Based on the video, what resources (personal, economic, social, and so on) does Ms. Jones have that might not be available to other clients? How might the clinic mitigate clients’ lack of access to these resources?
Initial Screening
The steps used for general screening are:
- Is there a legal issue that would benefit from the clinic’s expertise?
- Make sure the area of law is one the clinic can handle.
- How urgent is the matter?
- Refer if needed.
- Note – clinics and firms also have screening processes for clients experiencing domestic violence and other trauma. Check with your clinic to find out specific protocols for screening. Also note if the client might benefit from the services of an interpreter.
Reflection Questions
- What client service techniques did you observe in these videos? What worked? What could be improved?
- Brian asks Ms. Jones if she has been served with any notices by her landlord. Why? What would happen if Ms. Jones wasn’t served with any notices?
- Did Brian gather enough information for the purposes of an initial client intake? What else could he have asked?
Engagement to Act – The Retainer
A legal retainer is a contract between the clinic and the client and must be completed before a clinic can do any work on behalf of a client. A retainer sets out the obligations of both the client and the lawyer and describes the services the lawyer will provide.
