M1 - Learner Manual

7.4. Conducting interviews

There are three key steps for conducting a client interview:

Explain the purpose and format of interview to the client 

Following statutory and workplace guidelines when conducting a client interview- confidentiality and conflict of interest[1]

Record client responses in an appropriate format

Explain the purpose and format of interview to the client 

When a lawyer first meets a client, he/she needs to interview the client and gather facts about their problem in order to understand the client’s needs and assist the client in making an informed decision. Interviews with client’s will be vital in obtaining information necessary to prepare their legal proceedings, inform clients of court procedures and respond to any questions or concerns the client may have regarding their circumstances. 

The structure of an interview can vary. It can range from an informal first point of contact to a relatively formal meeting. Your interview may also vary in nature, from meeting with a client in person, to speaking with a client over the phone and what is becoming increasingly popular, interviewing a client via video conference. Regardless of the nature of formality of the interview, it is of upmost importance to ensure the client feels comfortable. Building rapport is essential, and first impressions are very important. It is necessary to gauge how you will structure the interview based on the needs of the client, which is particularly relevant for Indigenous clients.

Following statutory and workplace guidelines 

Client interviews must be conducted bearing in mind principles of confidentiality and conflict of interest. It is essential these principles are explored and where necessary explained to the client before or at the commencement of any legal interview. 

Dealing first with confidentiality, lawyers generally cannot be forced to disclose information which has been communicated, orally or in writing, for the ‘dominant purpose’ of giving or obtaining legal advice. There is also the client’s legal professional privilege. The principle of legal professional privilege is designed to promote the right of a client to communicate with a lawyer for the ‘dominant’ purpose of obtaining advice in relation to legal or administrative proceedings. It is intended to create an environment in which clients will give a full and frank disclosure of all the circumstances of the situation. 

However, there are exceptions to this duty of confidentiality. Lawyers are required to disclose information where:

communication is made by the client to the solicitor for the purpose of being guided or helped in committing a crime; or 

there is a duty under legislation or common law to disclose information (for example, search warrants).

Another important principle of legal representation is that legal practitioners must seek to avoid representing a client where to do so would give rise to a ‘conflict of interest’. A conflict of interest would exist where a legal practitioner’s duty to one client conflicts with their duty to another (as distinguished from a conflict of interests between the solicitor and client). Generally, the rules of courts require that parties who are in conflict with each other have separate legal representatives. A conflict of duty can arise in a range of situations and works against the lawyer’s duty to use all the relevant information to further the interests of one client while maintaining the confidentiality of another. Conflict of duty issues can be a serious problem in country areas, where there is sometimes only one solicitor available and often results in one of the clients having to find legal advice in another town.

A conflict of interest can also arise in relation to a previous client. Solicitors have an obligation not to breach the confidentiality of a prior client. This can be a problem in large firms and because practitioners commonly move between firms. Some firms have developed the concept of ‘Chinese walls’, or ‘information barriers’ whereby procedures are established to prevent information held by one solicitor being communicated to others in the office. Courts have not always accepted this as a legitimate means of avoiding a conflict of interests. 

Also, a solicitor should not act for a person if they themselves have a particular interest in a matter, which they could put before their duty to act in the best interests of their client.

Record client responses 

It is important to take notes about important details throughout the interview, but not write down everything the client says. Names and dates are often important to write down as the client is talking given that they can be easily forgotten or confused over time. However, the interviewer must remain focused on the client, with their head up and keeping eye contact (if appropriate). After the conclusion of the interview, the interviewer can then include more detail in their notes while all of the information is still fresh. You may also consider at times video or voice recording an interview with a client, but these are less commonly used techniques and would certainly require permission.

In some circumstances, to properly prepare for a court case, it may be necessary to take a formal statement from the client in which the client’s version of events is recorded word for word and the client signs the statement as a true record of their instructions