The emphasis on competence-based learning in today’s law school curriculum has enriched experiential courses and clinical programs for law students. My law school has designed its curriculum in first and second year to reinforce four competences: legal analysis, legal advising, legal representation and decision-making.
Admittedly, some lecturers struggle to differentiate advising from representing. That same confusion was reflected in the results of our own surveys of first and second year students. How, then, do we help our students to properly assume the role of advising, without crossing the line into representation? I advocate generating an array of options for the client. Mind mapping tools are helpful in visualization of each option and its consequences.
Three Roles of Lawyers
Legal practitioners wear three hats in international practice – advocates, experts and counselors. Advocates engage in persuasion. They zealously argue their client’s interests in a variety of forums – courts, mediation, arbitration, including proceedings in the World Trade Organization, the International Criminal Court or the United Nations Human Rights Council. Advocates consider the strengths and weaknesses of their opponents’ positions as well as their own.
Experts investigate or conduct research and deliver summaries of findings, reports or policy briefs for international organizations. Their insights inform the next steps of the organization in policy planning. Special rapporteurs issue reports after country and site visits, recommending a course of action to the UN Member States participating in the UN Human Rights Council.
Counselors, on the other hand, must help their clients make wise and informed decisions about where they will take their business or how to resolve disputes. When advising a client, the best practice is lay out a myriad of options for clients to choose from. Presenting the options with related advantages and disadvantages assists in sound decision-making. The counseling role is a classic legal advising hat worn by a lawyer.
The Legal Advising Process
Advising begins with gathering information regarding the legal issues confronted by a client. Information gathering encompasses telephone or in-person interviews with the client to understand the circumstances for which the client needs advice. Information gathering can also require contact with third parties who have knowledge or a background in the subject matter and/or who can give additional documentation concerning the client’s problem.
The second phase is to generate options for the client. Following a time of information gathering, legal practitioners also research important legal issues and identify the relevant legal standards applicable to the problem. They discuss the issues in a team with the aim of finding options for the client. This is the key moment in the legal advising process because it is the basis for the advice.
A mapping application such as SimpleMind or MindMup (pictured below) is useful for brainstorming options. In addition, when thinking about options, at least three can be considered – litigation, alternative dispute resolution or continuing without opting for any legal action (status quo). While considering each option, evaluating the pros (+) and cons (-) regarding financial matters, client relationships and timing considerations aids in formulating the options for the client.
The final phase of advising is the delivery of the advice to the client. Practitioners communicate advice in writing, but some clients also prefer a face-to-face meeting. The advice should clearly state the options and the advantages and disadvantages. It can also give a recommended course of action, making it clear that the client is free to choice whichever option (s)he deems appropriate.
Legal advising distinguishes itself from advocating and delivering expert opinions, in that it does not take a single position or attempt to effectuate a path of action or a desired outcome. Advising seeks to introduce a client to a wide array of options and set forth the pros and cons of the options. Advising also entails a recommended course of action substantiated with reasons for why it is advantageous to the client. Nevertheless, the client is always free to choose another path.