September 2008

Informed Consent for Lawyers

by Christopher H. Howard and Colin Folawn

In September 2006, Washington’s Rules of Professional Conduct (RPCs) were revised to include the phrase “informed consent.”1 Although the phrase “informed consent” appears in pre-2006 case law, this amendment to Washington’s Rules of Professional Conduct leaves little doubt that the emphasis is on the process of obtaining a client’s informed decision among alternative courses of action. The use of this phrase establishes that it is not enough to simply recite a litany of material facts and obtain a signature. The inclusion of the phrase “informed consent” in our ethics rules indicates the extent of the work that lawyers must do when their clients’ informed consent is required.

The addition of “informed consent” may not represent a substantive change in the rules; the prior rules called for consent after full disclosure.2 Yet general principles of construction suggest that when a committee of lawyers changes or adds a phrase, that phrase has a different meaning. At the very least, “informed consent” should remind attorneys that the client must be put in a position to meaningfully
consent. Attorneys must conduct a meaningful consent process with clients and prospective clients. The changes to the rule should at least inspire us to better document the process and remind us to take our time to explain the alternative options available to our clients.

Lessons Learned from Other Contexts

Other sources of law, including medical malpractice and waivers of constitutional rights, remind us that the process of obtaining informed consent should result in a client who makes an informed, knowing, and voluntary choice.

Medical professionals have been tasked with obtaining “informed consent” for decades. There is a statutory scheme in Washington and significant case law defining their obligation.3 Although none of that is formally adopted or referenced in the new RPCs, it is reasonable to assume such “informed consent” case law will be looked to on how this term applies to lawyers.

In cases involving medical informed consent, the written signed documentation creates a statutory presumption that informed consent was obtained. There is no similar statute for legal informed consent, but it is reasonable to expect that a signed document reflecting the informed-consent process would be strong evidence that the process actually occurred.

Courts have noted that the informed consent required to waive a constitutional right must be knowing and intelligent.4 Similarly, the process of obtaining informed consent in other contexts should result in an intelligent decision from the client, albeit in a different context.

The importance of getting a signed informed consent, even when certain of the rules may not require it, should not overshadow the reality: Informed consent is a process, not a piece of paper. The documentation of the process is valid only if the process occurs. Disputes about informed consent often arise after memory fades. It is also useful to have regular practice and procedure for what is discussed and how you go through it. Only then is the documentation of informed consent fully useful for defending a lawyer.

Not all client-informed consent must be in writing. For example, attorneys need not document the necessary consent before revealing information relating to representation,5 using such information to a client’s disadvantage,6 accepting compensation from a source other than the client,7 or taking representation adverse to the lawyer’s relative.8 Moreover, not all writing requirements are equal. Attorneys must confirm consent in writing when obtaining a concurrent conflict waiver,9 negotiating aggregate settlements with two or more clients,10 or representing a new client in a preexisting matter.11 Certain rules require specific written disclosures and consent in advance, including business activities with a client12 and prospectively settling a malpractice claim13 or settling with a client or former client who is not independently represented.14

When in doubt, confirm in writing. This is easier than it sounds. The new RPCs and the comments broaden what constitutes a writing, to include electronic communication and voicemail.15 Writings may be signed by any “electronic sound symbol or process” logically associated with a writing and expressing an intent to sign the writing.

Elements of Informed Consent

The RPCs define the phrase “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.”16 Thus, informed consent always involves a discussion of reasonably available alternate courses of action.

The prior language was less clear. For example, when dealing with potential conflicts of interest, former RPC 1.7(b)(2) required that the client consent “in writing after consultation and a full disclosure of the material facts…. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.” Today, there can be no question: Informed consent requires that the lawyer communicate and explain the proposed course of conduct, material facts, material risks, and reasonably available alternative courses of conduct so that the client may make an informed choice.

Washington’s comments to the rules provide that, when informed consent must be in writing, such writing must be “articulated in a manner that can be easily understood by the client.”17 In order to obtain informed consent, there generally must be an affirmative response by the client or someone acting on the client’s behalf.18 In general, consent cannot be inferred from silence.19 But in some circumstances, consent can be inferred from conduct.20

A lawyer need not personally provide all of the information upon which a client might rely to provide informed consent. But, when a lawyer does not personally inform the client, that lawyer “assumes the risk” that the client is inadequately informed and that the consent is invalid.21 Comment 6 to RPC 1.0 specifically cautions the lawyer of the risk associated with not personally informing a client of material information.

The Importance of Informed Consent

Informed consent is critical in matters of legal ethics. The process of obtaining informed consent should increase client satisfaction, because it increases attorney-client communication and empowers the client’s choices. Informed consent also is helpful to defend in legal malpractice cases, because it should evidence disclosures made to the client and document the client’s choice.

If courts borrow the standards from medical malpractice, informed consent may be judged retrospectively by an “objective subjective” standard. This may also be phrased as a reasonable subjective standard, meaning that a contention that informed consent was not obtained must establish that the information that was not disclosed must be material and that it would have made a difference to the objectively reasonable client in a similar circumstance.

In a legal malpractice action, causation must be shown, and it usually must be supported by expert testimony.22 But in cases where the plaintiff alleges a lack of informed consent, documentation of the process is strong evidence for the defense, increasing the possibility of dismissal by summary judgment. Lack of evidence of informed consent will greatly increase the likelihood that the case will proceed to trial.

In disciplinary matters, evidence of informed consent will be important to the defense where a client claims not to have been properly informed. Proof of causation may not be necessary for a successful bar complaint based on lack of informed consent. Given the definition of informed consent, the assumption of risk language found in the comments, and the ease by which informed consent can be documented, cautious practitioners should revisit their informed consent processes and documentation.

What to Do

The process for obtaining informed consent often begins over the telephone. The attorney should describe the proposed course of conduct and all reasonably available alternatives. The attorney should also communicate and explain the pertinent facts, information, risks, and advantages of each course of conduct. Sometimes it is necessary to explain why the client may wish to discuss the issue with other counsel. During this conversation, it can be helpful for the attorney to make contemporaneous notes of the discussion, followed by dictating a memorandum to the file or drafting the client letter right after the conversation. The closer in time that this occurs to the initial client discussion, the better.

Any discussion, whether a telephone call or in person, should not be a lecture; it should be a dialogue, the goal of which is to inform the client and explain the possible courses of action. Attorneys should not demand a decision by the client if the client needs time to consider the options.23 The attorney should make sure that the client has the opportunity to ask questions, and the attorney should answer those questions.

After the conversation, the attorney should draft a confirming client letter, which should reiterate the facts, information, risks, and advantages discussed, as well as stating the proposed and alternative courses of action. Two copies of the letter should be sent promptly to the client. The attorney should request that the client sign and return one copy to the attorney. The attorney should then follow up with the client to make sure that the letter is signed and returned. This last step often can be overlooked once work on the matter has started. Many of the RPC provisions requiring written consent may be satisfied by the lawyer sending a letter confirming the client’s verbal expression of consent. But following up to obtain the client’s signature is also a good loss prevention step.

Attorneys who communicate with their client via e-mail should request that the client reply to the memorializing e-mail to demonstrate the client’s informed consent.24 Although there are situations in which a writing or client signature is not necessary, the better practice errs on the side of always memorializing the process.

Conclusion

The process of obtaining informed consent is required under Washington’s Rules of Professional Conduct. A detailed process and written confirmation can provide strong evidence in defense of a legal malpractice claim or bar complaint. Although the 2006 revisions to the RPCs may not reflect a sea change in the rules, they provide clarification and an important reminder to Washington lawyers that informed consent involves dialogue and process.

Going through the process of obtaining informed consent not only satisfies an attorney’s ethical requirements, it also should strengthen the attorney-client relationship and document choices made during representation. When done well, the process reminds clients of why they chose you as their attorney and counselor at law. 

Christopher Howard and Colin Folawn are trial lawyers at Northwest law firm Schwabe, Williamson & Wyatt. They co-host Schwabe’s monthly ethics hour CLEs and can be contacted at 206-622-1711 or choward@schwabe.com and cfolawn@schwabe.com.
 
NOTES
 1. See, e.g., RPC 1.7(b)(4).
 2. See the standard in Former RPC 1.7(a)(1) was “consents in writing after consultation and a full disclosure of the material facts.”
 3. See RCW 7.70.050.
 4. See, e.g., United States v. Gamba, 483 F.3d 942, 949 (9th Cir. 2007) (stating that “[t]he Supreme Court is habitually clear when a defendant’s personal and informed consent is required to waive a constitutional right” and citing Boykin v. Alabama, 395 U.S. 238, 241–43 (1969) for the proposition that a guilty plea and the waiver of right to counsel must be made “knowingly” and “intelligently” by the defendant).
 5. RPC 1.6(a).
 6. RPC 1.8(b).
 7. RPC 1.8(f).
 8. RPC 1.8(l).
 9. RPC 1.7(b)(4).
 10. RPC 1.8(g).
 11. RPC 1.9(a).
 12. RPC 1.8(a)(2) and (3).
 13. RPC 1.8(h)(1).
 14. RPC 1(h)(2).
 15. See RPC 1.0(n).
 16. RPC 1.0(e).
 17. RPC 1.0, cmt. 11.
 18. RPC 1.0, cmt. 7.
 19. Id.
 20. Id.
 21. RPC 1.0, cmt. 6 (noting that the client is to be afforded “a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns”).
 22. See, e.g., Geer v. Tonnon, 137 Wn. App. 838, 850, 155 P.3d 163 (2007).
 23. See RPC 1.7, cmt. 20.
24. See RPC 1.0(n) (providing that a “writing” includes handwriting, typewriting, printing, photostating, photography, audio or video¬recording, and e-mail). A signed writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. Id.