Informed consent is important for the client
Multiple Rules of Professional Conduct impose a duty upon an attorney to obtain the informed consent of a former, current, or sometimes even prospective client before being able to engage in representation or a certain action.
“Informed consent” is defined as the agreement by the client to a proposed course of action after the attorney has communicated sufficient information about and explained the material risks and reasonable available alternatives. Technology has redefined the meaning of “written” consent which, in addition to being handwritten, now encompasses consent through any physical or electronic proof such as printing, email, photography, and audio or video recordings. The meaning of “signature” has also changed with technology to now include an electronic or e-signature.
Various rules require different forms of informed consent. However, when presented with a document giving informed consent, such document should include at least the following basic components: a reason for requesting the consent; a comprehensive explanation of the situation in as much detail as possible, including the adequate disclosure of likely consequences, risks, advantages, and disadvantages; a clear explanation of the steps taken to comply with the ethical duties to the client; and a notice that each party is entitled to independent counsel prior to providing consent.
It is imperative that a client fully understands the circumstances of the specific situation and the consequences of providing informed consent. An attorney does not need to provide information already known by the client. However, that consent might be invalid if, at a later time, it can be determined that, based on the client’s lack of legal expertise or a lack of independent legal representation, the client did not have reasonably adequate information to make an informed decision.
Similarly, informed consent can also be made prior to a situation that may occur in the future. While permitted, this advance consent will be scrutinized to determine whether the client reasonably understood the material risks involved when that consent was made. Such open-ended advance consent will likely be invalid; however, advance consent that is provided once the comprehensive explanation of the future circumstances and foreseeable consequences is supplied will likely be effective.
Sometimes, a satisfactory disclosure of information may not be possible due to conflicting duties of confidentiality. This should be a clear signal to the attorney to refrain from the contemplated course or action and to strongly consider withdrawing from the representation.
The cornerstone of informed consent is the requirement of an affirmative response by the client. In certain situations, the consent has to be timely confirmed in writing. In practice, it is wise to obtain timely written confirmation even it is not required by the rules. Of course, informed consent in writing does not dismiss the attorney’s obligation to thoroughly communicate the circumstances surrounding the need for the consent to the client. More importantly, the attorney should never assume consent from the client’s lack of response. Sometimes, informed consent can be inferred from the client’s conduct, but such assumption creates an unnecessary risk of misunderstanding.
The client should know and be adequately advised that informed consent can be revoked. This revocation may impact the attorney’s relationship with the revoking client and potentially with other clients. Consequently, the attorney may be forced to terminate the attorney-client relationship with the revoking client and possibly with other clients. The revoking client revoking also may terminate the attorney-client relationship at any time.
Informed consent is an important tool intended to educate the client about the scope of representation and it allows the client to actively participate in the course of representation.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.