The Client Interview

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 111-140

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CHAPTER 5

THE CLIENT INTERVIEW

§ 5.01 Introduction: Scope of the Chapter; Overview

of the Chronology of an Initial Interview

There are essentially three types of initial interviews, which differ according to the

circumsta nces under which counsel is meeting t he client and conducting the interv iew.

The first t ype, which will be denominated the “full-scale interview,” is conducted with-

out extraneous ti me pressures and covers all of the information that counsel wi ll need

to know in preparing for t rial as well as for all pret rial and postt rial proceedings. This

“full-scale interview” may take place in counsel’s office when the client first comes to

see counsel, or at a detention facility when counsel goes to see the client at the behest of

a parent or upon appointment by the court. The second ty pe of initial interv iew is the

one described in § 3.22 supra, in which counsel meets a newly arrested client at the police

station and, because of the lim ited time and restrict ive setting, must focus upon t he

crucial message to convey to t he client at this point: that the client should refrain from

making any statements to the police about the crime for which s/he was arrested. The

third t ype of initial interview is t he one described in § 4.07 supra, in which counsel meets

the respondent on the day of the Initia l Hearing and, again under rushed circ umstances,

must interview the client with a focus on information needed for the detention hearing

and probable-cause hearing. In the latter two scenarios, the rushed interv iew that coun-

sel conducts in his or her first meeting with the client will have to be supplemented by a

later interview (in counsel’s office if the client is released; at the detention facilit y if s/he

is not), in which counsel covers all of the elements of the “full-scale interview” that s/ he

was forced to neglect in the first meet ing with the client.

A “full-scale inter view” consists of essential ly six separate stages:

1. The introductory phase , in which counsel introduces himself or herself to t he child

and parent, and explain s counsel’s need for meeting with the chi ld alone (see § 5.03

infra);

2. The initial phase of counsel’s private meeting with t he child, in which counsel

establishes rapport with t he child, explains the attorney-client privilege, and dis-

cusses other prelim inary matters (see § 5.04 infra);

3. Q uestioning of the client about the facts of t he offense, defense witnesses, and

other matters that counsel needs to k now in order to prepare for trial and prepare

pretrial motions (see §§ 5. 06, 5.07 infra);

 | Tr ial Man ual for Defense Attorneys in Juv enile Delinquency Cases

4. Eliciti ng the client’s social history, especially facts needed for the detention hear-

ing if that hearing has not yet taken place (see § 5.08 inf ra);

5. Final instructions to t he client about refraining from t alking w ith the police or

anyone else about the case and inst ructions about the import ance of promptly

relaying any new information to counsel (see § 5.10 infra); and

6. Upon completion of the separate interview of the client, furt her discussion with

the parent or guardia n, which counsel should conduct in the presence of the client

(see § 5.11 infra).

§ 5.02 Preparing for the Interview

Proper preparation for an interview is required if counsel hopes to achieve the objective

of inspiring conf idence and trust in t he client. It is important that coun sel be acquainted

with the specif ic charges against the respondent and the elements of the charged offen ses

in order to avoid floundering when tak ing the client’s story. Knowledge of the appli-

cable penalty provisions is indispensable in order to answer the question—which the

client wi ll almost certainly a sk—about what kind of a sentence the client is facing. If the

interview takes place prior to the detention hearing, counsel should also be prepared to

answer the client’s questions about the likelihood of avoiding pretrial detention.

§ 5.03 The Introductory Phase: Expla ining

to the Family the Need for Counsel’s Meeting

with the Client Alone

§ 5.03(a) The Re asons for Meeting with the Clien t Alone

In order to get the accurate account of the facts t hat counsel will need to invest igate

the case, counsel must meet with the client outside the presence of the child’s parent or

guardian. If the parent or guardian is present, the client may be afraid to speak truth-

fully about his or her part icipation in the crime, either because s/he is afraid of the

sanctions the parent/guardian will impose or because s/he is afraid of disappointing

the parent/guardian. Even those clients who admit involvement in front of the parent/

guardian of ten minimize their involvement and distort the fact s in order to present the

best picture. Clients may b e unwilling to admit even noncrimi nal conduct in the parent/

guardian’s presence if that conduct violates parental directives such as a curfew or an

order to stay away from certain f riends.

In addition to creating subtle impediments to accurate interviewing, some parents

overtly intrude on t he interview process, telling certain events from their own perspec-

tive and preventing t he child from relating the events.

Moreover, the presence of the parent or guardian can have detrimental legal con-

sequences. The vast majority of jurisdict ions do not recognize a parent-child privilege.

See, e.g., United States v. Davies, 768 F.2d 893, 896–900 (7th Cir. 1985); Cissna v. State,

170 Ind. App. 437, 439–40, 352 N.E.2d 793, 795 (1976); State v. Gilroy, 313 N.W. 2d 513 ,

518 (Iowa 1981); State v. Bruce, 655 S.W.2d 66, 68 (Mo. App. 1983); In the Interest of