Bar News - July 13, 2012
Ethics Corner: Informed Consent
Dear Ethics Committee: I have noticed that, under the New Hampshire Rules of Professional Conduct, there are several circumstances under which a lawyer may take a particular action as long as the client gives "informed consent." What does it mean to obtain informed consent?
"Informed consent" is a concept that appears in several places in the New Hampshire Rules of Professional Conduct. For example: Rule 1.2(c) permits a lawyer to limit the scope of representation if the client gives informed consent; Rule 1.6(a) permits the disclosure of confidential information with the client’s informed consent; and Rule 1.7(b) permits the waiver of certain conflicts with informed consent confirmed in writing by the affected clients. It is important for lawyers to understand what constitutes "informed consent" under the Rules in a particular situation.
Rule 1.0(e) defines informed consent as "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." The ABA Comments to the definition point out that what is necessary to obtain informed consent from a client will vary according to the circumstances and the particular requirements of the Rule at issue.
At the very least, a lawyer seeking a client’s informed consent must discuss the relevant facts and circumstances with the client, and must reasonably inform the client of the material advantages or disadvantages of the proposed action, and the available options and alternatives. Requests for client consent should also include, at a minimum, a discussion of the actual and potential limitations on the lawyer’s present and future representation of the client, and whether the client may revoke the consent.
It is the lawyer’s responsibility to provide the client with sufficient information for the client to give informed consent, and a lawyer who does not do so runs the risk that the consent obtained will not be valid. In some situations, it will be appropriate to refer the client to separate counsel, and where the client is independently represented in giving consent, the ABA Comments to Rule 1.0 state that it can usually be assumed that such consent is "informed."
Informed consent requires some affirmative act by the client, and should never be assumed from a client’s silence. In some circumstances, such as an aggregate settlement under Rule 1.8(g), the Rules require that informed consent be in the form of "a writing signed by the client." In other circumstances, such as the waiver of a concurrent conflict under Rule 1.7(b) the client’s informed consent must be "confirmed in writing." As explained in Rule 1.0, "confirmed in writing" means either a writing signed by the client or a writing that a lawyer promptly transmits to the client confirming an oral consent. Finally, there are some instances, such as disclosure of confidential information under Rule 1.6(a), where a writing is not specifically required, and informed consent may be inferred from the conduct of a client who has been adequately informed. Even where not specifically required by the Rules, however, the better practice is to obtain an explicit written expression of consent to avoid any confusion or mistake.
In cases where informed consent must be obtained in writing, neither the Rules nor the comments provide specific guidance as to the contents of the writing. It is implicit from the Rules that the writing must, at minimum, contain an express affirmative statement that the client is consenting to the proposed course of conduct, and that the client is doing so after having received the information necessary to give the consent. As suggested in a recent Ethics Committee Opinion (2008-09/1), lawyers should also consider including a summary of the disclosures that were made and discussions held with the client prior to requesting the consent.
Finally, before seeking a client’s consent to any conduct, a lawyer must first ensure that it is permissible for an attorney to request client consent under the circumstances, and that the other requirements of the Rules have been met. For example, a lawyer may only seek a client’s consent to a concurrent conflict under Rule 1.7(b) when three other tests have also been met: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. It is important for lawyers to review carefully the Rules governing their particular circumstances because "informed consent" alone is often insufficient to permit the lawyer to proceed.
The Ethics Committee wants to help you. If it is a pressing matter, informally consult with a member of the Ethics Committee by contacting Committee Liaison Robin E. Knippers.