“Informed consent.” It sounds like such a good thing for a lawyer to obtain from a client – far superior, or at least less hazardous to one’s professional liability, than uniformed consent. Why then does “informed consent” rank among my 5 Most Dangerous Rules of Professional Conduct?[i]
First, while, like the magical Liopleurodon, most lawyers have heard of “informed consent,” based on my interaction with the bar it seems only a few have a clue where to find it in the Rules. It’s hidden in plain sight – in Rule 1.0 (Terminologysection of the RPC which typically receives the same close scrutiny as the forward to a book or an Apple End User Agreement.
|The Apple EULA|
Second, “Informed consent” represents a dramatically higher standard than former requirement of “consultation,” which only required “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” Despite American Bar Association Ethics 2000 Committee’s assurance that ”no substantive change is intended” by the change from “consultation” to “informed consent,” emerging opinions and case law are applying the plain language of the rule. See, e.g., CenTra, Inc. v. Estrin, 538 F.3d 402 (6th Cir. 2008) (reversing summary judgment in legal malpractice action arising from failure to obtain informed consent regarding waiver of conflict of interest).
However, what pushes “informed consent” into the rarified atmosphere of The 5 Most Dangerous Rules of Professional Conduct is that it is ubiquitous. Most lawyers encounter “informed consent” in Rule 1.6(a) (Confidentiality of Information) or 1.7(b) (4) (Conflict of Information: Current Clients), however “informed consent” is everywhere. If, as Horace Rumpole frequently declares, the presumption of innocence is the “golden thread” that runs through English justice, “informed consent” is a potential tripwire that runs throughout the Rules of Professional Conduct, ready to snare attorneys not on the lookout for it.
“Informed consent,” of course, is not a rule, but a definition:
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Colo. RPC 1.0(e) (emphasis added). “Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence.” Colo. RPC 1.0 [Comment 7].
Informed consent comes in many flavors. Sometimes it can simply be given by the client. See, e.g., Colo. RPC 1.2(c). Other times it must be confirmed in writing. See, e.g., Colo. RPC 1.7(b)(4).
“Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
Colo. RPC 1.0(b) (emphasis added). And, on occasion, it must be “in a writing signed by the client.” See, e.g., Colo. RPC 1.8(a)(3) (emphasis added). It is imperative to be alert to, and observe these differences.
There has been no shortage of digital ink spilled on the topic of “informed consent.” One of the better summations is by my friend and colleague David Little: Informed Consent Under the Rules of Professional Conduct. Notwithstanding that springtime has arrived in the Rockies, I have no interest in replowing that ground. Rather, the purpose of this article is to offer an informed consent concordance, and a few practice tips to assist informed lawyers avoid the golden tripwire:
|Avoid the Golden Tripwire of "Informed Consent"|
- Even when informed consent is not required to be “confirmed in writing,” confirm it in writing.
- Even when informed consent is not required to be signed by the client, obtain the client’s signature.
- Draft a conformed consent document with the same care you would a securities prospectus. It needn’t be as dire, and should not be as long as a Form S-1. After all, the purpose is to inform the client through “adequate information and explanation.” Verbosity and a fusillade of legal jargon are not substitutes for informed consent.
- There is no such thing as a “standard waiver.” For this reason, in my capacity as Moye White’s ethics advisor, I never provide a “conflicts waiver” whenever one of our attorney’s ask for this mythic document. Rather I interview them, inquire about the nature of the potential conflict (I require them to draw pictures), explore why they think they need/or want to waive the potential conflict, and instruct them regarding time and care that must be put into any effective waiver. Only then, and only if appropriate, will I provide a base starting document (or a few) from my hoard. And I always check their homework. If that seems obsessive, go back and read this article again.
With these tips in mind, here is a concordance to guide attorneys safely through the informed consent ethical minefield:
- Colo. RPC 1.2(c) “A lawyer may limit the scope or objectives, or both, of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
- Colo. RPC 1.4(a)(1) “A lawyer shall . . . promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules.”
- Colo. RPC 1.6(a) “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . . .”
- Colo. RPC 1.7(b)(4) “Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: . . . each affected client gives informed consent, confirmed in writing.”
- Colo. RPC 1.8(a)(3) “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: . . . the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.”
- Colo. RPC 1.8 (a)(4) “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
- Colo. RPC 1.8 (f)(1) “A lawyer shall not accept compensation for representing a client from one other than the client unless: the client gives informed consent.”
- Colo. RPC 1.8 (g) “A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.”
- Colo. RPC 1.9 (a) “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”
- Colo. RPC 1.9 (b)(2) “A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client . . . about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.”
- Colo. RPC 1.11 (a)(2) “Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: . . . shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”
- Colo. RPC 1.11 (d)(2)(ii) “Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: . . . shall not . . . participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing.”
- Colo. RPC 1.12(a) “Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.”
- Colo. RPC 1.18(d)(1) “When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if . . . both the affected client and the prospective client have given informed consent, confirmed in writing.”
- Colo. RPC 2.3(b) “When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.”
Be careful out there.