Author is a sitting Judge at the Madras High Court)Justice Anand Venkatesh
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“Informed Clients”- A New Challenge To Legal Professionals
– Justice Anand VenkateshUpdate: 2020-12-28 12:42 GMT
Traditionally we have always been told that the relationship of a client with a doctor or a lawyer is based on “Trust and Confidence”. That is why even law gives those relationships a privileged status. I personally feel that excess availability of information and data at the touch of a screen poses a challenge to this “trust and confidence” and is off-late, giving rise to new challenges to professionals in handling their clients. I felt that there is an urgent need to understand this new facet of handling such clients and hence decided to put pen to paper to enable my advocate brethren to deliberate upon it and equip themselves to deal with such “informed” clients effectively.
The other day I was having a conversation with a new entrant into the profession and inquired about her travails and experience as a young lawyer stepping into the profession. She brought up the subject of handling clients based on an incident that took place between a client and a senior associate in her office. Her observation of the entire conversation that took place for about nearly two hours gave her a clear indication that the client instead of explaining the facts and the relief required, was focusing more on testing the associate on his capabilities. The senior associate had handled the client courteously right through despite the client’s impertinence and even though doubts raised by the client were bordering on questioning his capability to handle the case.
Recalling a chat with my friend, a family physician with creditable experience and a sizeable clientele, I was intrigued that he had also touched on the topic of patients and close family members accompanying patients, questioning the tests suggested by him, treatment and medication prescribed by him, his diagnosis, prognosis etc. He told me that there is this new breed of patients, accessing medical terms and conditions attempting to test medical professionals, armed with their “internet-based medical knowledge”. I curiously asked him as to how he handles such patients to which his nonchalant reply was this- Looking into the eyes of the patient he would ask whether they came to the hospital to get treated or test his abilities and if it is the latter, he will point blank tell the patient to look for some other doctor.
Before my elevation to the Bench, I encountered a similar experience with a client, who during the consultation, started pulling out judgements of the Hon’ble Supreme Court from his file and requested me to look into it and asked me to deal his case from the angle of the judgements pointed out by him. I was flummoxed, and could not resist telling the client that he need not engage an advocate as he had so much knowledge and that he should, therefore, move the court as party-in-person. I did have the satisfaction of giving a piece of my mind by explaining the irrelevance and inapplicability of every one of the judgements brought by him, to his own legal predicament and reminded him that he had come seeking my support for relief before the court and not to test my legal acumen.
I know of the advocate brethren’s woes, of clients who want the pleadings to be presented in the way they want it, without the courtesy to seek the leave of the advocate, virtually rewriting the entire pleadings. In other words, these are clients who want to use the services of advocates like a post office. I have been privy to some of those pleadings with unnecessary, scandalous and scurrilous attacks on the opposing parties apart from extracts of irrelevant judgements downloaded from the internet.
The litigant public has access to information provided by every court online. They are able to get information right from the stage of filing till the stage of disposal of not just their case but every other case filed in a court. Here comes the tricky part. Once they take notice of any case filed after their case, getting disposed of earlier, they accost their advocate questioning his competency to get the case listed and disposed-of. Such litigants grow by the numbers. They can never understand the practical nitty-gritty of procedures and of the functioning of courts and any explanation given to them is construed as a lame excuse. They keep hopping from one advocate to another, relying upon online information, totally unaware of its applicability and relevance to their case.
The common thread that runs across all such instances is the free and easy access to information at the touch of a button posing a new challenge, or should I say threat, faced by professionals. No doubt, a client has the right to get all their queries answered, to know about the probability of success or failure based on the facts put forth to the counsel, to understand the possible time frame within which the case can see its end, to know the probable cost of the litigation and even get opinions from other advocates concealing the first opinion received from one to the other advocate! An advocate has the professional courtesy to provide leniency and understanding to a client to give him a fair idea to proceed with the future course of action. It is very important for the counsel to speak the truth at this stage since it will determine the faith and confidence reposed on him by the client in the ensuing legal battle. Gone are the days when you will find a client completely surrendering himself to an advocate without questions. Such instances will be far and few in an era where information is readily and freely accessible.
I was watching “The Surgeon’s Cut”, a brilliant documentary on Netflix, staging the lives of four famous surgeons who deal with a life or death situation on a daily basis. It was a revelation watching them handling patients who approach them with extreme complexities. The most striking characteristic I noticed in them was the humanness with which they handle the patient, and their near and dear ones, their ability to speak the truth and nothing but truth and convey the best and worst scenarios the invasive procedure would take them through, howsoever harsh the reality may be. They discuss the patient’s doubts and anxieties and get clear consent before proceeding further with the surgery. Once that happens, the patient concedes to the surgeons’ professional skill and thereafter, it proceeds only on the trust and confidence reposed on the doctors. Even unsuccessful surgeries are gracefully accepted without any questions being asked.
There is a lesson to be learnt by advocates as to how they can handle clients effectively in this free information era. I have always felt that a client who merely surrenders without asking any questions and reposes absolute faith and confidence on his advocate, actually raises multifold, the sense of moral, ethical and professional responsibility in his or her counsel. This typically happens with clients coming from a village or those who do not have any exposure to the mechanics of law and of courts. I am sure that this is how they approach doctors also and sometimes look up to them, a Godsend. Traditionally, advocates are used to such clients and through experience and proper tutelage they handle such clients with great aplomb. The challenging part is when the clients start testing the ability of an advocate as if he or she has come to recruit an employee, rather than engage a lawyer.
Information is a double-edged weapon. Primarily, advocates are expected to keep themselves abreast with the latest trends both in terms of legal acumen and matters connected to the litigation process. Technology keeps changing frequently, and even advocates are expected to update themselves lest they be left behind. Raising the bar at every stage of the challenge is the only way to survive in this profession. The pandemic has taught us this lesson and advocates have to necessarily equip themselves to handle this new normal. If advocates do not keep themselves abreast to handle the growing technology, they are likely to be negatively exposed by “internet-certified clients/lawyers!”- Beware! No good would come from subjugating a client with a loud voice/noise to cover up one’s own professional ineptitude. Such an attitude would only entail an advocate’s future loss vis-à-vis the client’s loss. Bear in mind that news, especially negative news, is a social media wildfire and an “internet-certified client!” can quiet easily damage an advocate’s professional standing.
Now coming to the crux of this article on handling a client who is more interested in testing an advocate and his capabilities. To handle such a client, advocates must first equip themselves. Once they do that, handling such clients becomes easier. It is very important to differentiate between questions asked to get more clarity and questions asked to test the advocate. The former questions fall within the right of the client, which are bound to be answered to the hilt. It is the latter questions which are posing new challenges to the advocate and client relationship. These are questions posed with half-baked knowledge acquired from internet searches. This situation requires to be handled sternly and not with kid-gloves. The reason being that it is not only a test conducted by an ill-equipped person on a counsel, but that it puts to test the profession as a whole.
An advocate toils hard to reach a respectable standing in the profession. It is a process which is time-consuming and does not happen overnight. The client can always satisfy himself or herself about an advocate’s ability and legal acumen by inquiring and collecting details before approaching the advocate. Once they are satisfied, they have to necessarily repose faith and confidence on the advocate of their choice. The duty of a client stops with providing all facts, for and against their case, and the necessary documents and materials supporting the same. Thereafter, it is the advocate who will decide the course of action and the client is bound to follow the advice of the advocate unless the client finds it to be contrary to facts or patently unreasonable. A client who thereafter starts testing the ability of an advocate needs to be clearly warned that they are crossing the limits. They must be very clearly told that they should stop such an attitude forthwith or to take away the brief without wasting any more time of the advocate. Such a client may even be a high paying client. Still, then, when it comes to maintaining an advocate’s self-esteem and professional standards and ethics, monetary considerations should not be a determining factor. The interest of the profession has to be safeguarded, and it is the duty of every advocate to ensure the same. Clients should never be given an impression that they can treat an advocate like an employee merely because they may possess more power, money or status. This position should never be compromised by an advocate under any circumstances, even if it means losing a high paying client. Once an advocate takes such a non-compromising stand, such “internet certified clients” will think twice before repeating such an attitude with another advocate. The law is no trade, and the brief no merchandise. It is time we raised the esteem of advocates and the standards of the legal profession.
Views are personal.
(Author is a sitting Judge at the Madras High Court)