Concept
Informed Consent
Consentability and informed consent under Rule 1.7(b)
Informed Consent
Rule 1.7(b)(4) supplies the last condition a lawyer must meet to represent a client despite a concurrent conflict: “each affected client gives informed consent, confirmed in writing.”1 The first three conditions look to the lawyer’s ability to do the work, to other law, and to the shape of the proceeding. This one looks to the clients, because only a client can decide to accept a risk to the client’s own interests. The conflict in question is either direct adversity to another client or a material limitation created by another interest or relationship, and the lawyer “may represent a client if” all of the Rule 1.7(b) conditions are met.2
The sentence makes three demands, and each guards against a different way consent can fail. A client who does not grasp what the conflict could cost has made no real choice, so the consent must be informed. An agreement reached in a conversation that no one can later reconstruct is easy to deny and hard to prove, so the consent must be confirmed in writing. One client’s signature says nothing about whether another client at risk has agreed, so the consent must come from each affected client. Because the same words govern a client who agrees today to a conflict that has not yet arisen, the sentence also raises a question of timing, taken up at the end of this unit.
Consent never stands alone. Some lawyers mistakenly believe that a client’s blessing overcomes any conflict, whatever the conflicting influence does to the quality of the representation.3 The rule demands more: the lawyer must also reasonably believe that the lawyer can provide competent and diligent representation to each affected client.4 The same pairing governs a conflict imputed through a firm. Rule 1.10(c) refers back to Rule 1.7(b), so the waiver is proper only if the client gives informed consent, confirmed in writing, and the lawyer reasonably believes that each affected client will receive competent and diligent representation.5 A lawyer who skips any step lacks the consent the rule requires, even when the conflict is one that a client may waive. The first question is what makes consent informed, since a signed agreement means little if the client never received the information needed to understand it.
Adequate Disclosure
Informed consent has a defined meaning that is narrower than the everyday phrase suggests. Rule 1.0(e) defines it as the client’s agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of that course and the reasonably available alternatives to it.6 Three elements follow: the client must agree, the lawyer must do the communicating, and the communication must reach both the risks and the alternatives. A client can give up only what the client understands to be at stake, and the lawyer, who holds the facts, is the one able to say.
The client’s agreement must be affirmative. Where informed consent is required, the lawyer must obtain an affirmative expression of agreement and may not assume it from silence, although consent may be inferred from the client’s later conduct.7 Silence may mean confusion, indifference, or an unread message, so a client who never replies has told the lawyer nothing about whether the risk was understood.
Most failures occur in the explanation, usually because the lawyer announces the conflict and asks for a yes.
A warning that a conflict exists, followed by a request for consent, does not meet the standard.8 The client in that scene learned only that a conflict might exist and had nothing from which to judge what it could do to the case, so the yes reflected no assessment of risk. A form signed afterward would not repair the gap. Comment 20 to Rule 1.7 treats the writing as a way to impress on clients the seriousness of the decision and to avoid later disputes, and it says the writing is no substitute for the lawyer’s full disclosure of the risks and advantages.9
What must the lawyer say instead? In a multiple-client situation, the guidance covers the interests of the lawyer and the other client that give rise to the conflict; the contingent, optional, and tactical considerations, and the alternative courses of action, that the conflict would foreclose or make less readily available; the effect of the representation, and of the process of obtaining other clients’ consent, on the client’s confidential information; any material reservations that a disinterested lawyer might reasonably harbor about the arrangement if that lawyer represented only the client being advised; and the consequences of a future withdrawal of consent by any client, including, if relevant, the fact that the lawyer would withdraw from representing all clients.10 Each topic turns the abstract word “conflict” into something the client can weigh: a source, an effect on strategy, an effect on secrets, a comparison with what an unconflicted lawyer would do, and an exit.
That explanation touches every topic on the list, and each founder can set it against the alternative of separate counsel. The later section on joint representation returns to what the disclosure must include.
How much explanation is adequate depends on the client.11 A lawyer need not tell a client what the client already knows. A sophisticated client with experience in legal matters, such as a corporation advised by lawyers, generally needs less, and a client separately represented by independent counsel presumably has been adequately informed when consent is given. A client who has rarely or never used legal services, who is not well educated, or who shows little grasp of what is happening is owed a more thorough explanation. A first-time client who is handed a form and told to sign, with nothing explained, has given acquiescence that amounts to no consent. The same two-line notice may therefore satisfy a seasoned general counsel and still leave an inexperienced individual without informed consent.
The amount of detail also scales to the kind of conflict. When the conflict arises solely because a proposed representation will be adverse to an existing client in an unrelated matter, knowing the general nature and scope of the work being done for each client normally suffices for the clients to decide whether to consent.12 Earl’s Rooter shows the setting. A lawyer who gives general business advice to a drain-clearing company is asked by a motorist, injured when a company truck collided with his car, to bring a personal-injury suit against that company. The representation is directly adverse to a current client even though the matters are unrelated.13 Each side would need to learn, in general terms, what the lawyer does for the other, because the matters do not overlap and the main risk each must weigh is the adversity itself. The co-founders in the earlier scene stand differently, since their interests are intertwined in one matter and the explanation must reach confidences and withdrawal.
Comment 6 to Rule 1.0 puts the risk of an uninformed client on the lawyer: “a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid.”14 The lawyer can see what the client has and has not been told, and the lawyer benefits when consent is valid. A lawyer who delegates the explaining or skims it cannot later blame the client for misunderstanding.
The vocabulary of the rule has changed. The 1992 version of ABA Model Rule 1.7, reproduced in a footnote to Griva v. Davison, 637 A.2d 830 (D.C. 1994), permitted a representation only if, among other things, “the client consents after consultation,” and for multiple clients in a single matter it required the consultation to include “explanation of the implications of the common representation and the advantages and risks involved.”15 A dissent in Cincinnati Insurance Co. v. Wills, 717 N.E.2d 151 (Ind. 1999), applying Indiana’s earlier rules, described the structure as a reasonable-belief requirement plus the consent of a “fully counseled” client. As a dissent, it records how the older rules were read and states no holding.16 The older words, consultation and counseling, describe what the lawyer does. The current definition asks what the communication contained and whether it gave the client adequate information about the material risks and alternatives, and Comment 6 holds the lawyer responsible when it did not.
Confirmed in Writing
Rule 1.7(b)(4) asks for more than informed consent, because the consent must also be “confirmed in writing.”18 The phrase has a defined meaning, and the definition is lighter than many students expect. Rule 1.0(b) treats a confirming writing as a “writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”19 Two routes follow. The client may produce the writing, as with a signed form or an email stating agreement, or the client may consent aloud and the lawyer may then send a writing that confirms what the client said. Because the verb is “confirm,” the document records an agreement that already exists, so the consent can happen in conversation and the paper can follow.
The usual illustration is a telephone call. The lawyer explains the risks of representing another client, the client agrees, and the lawyer then sends an email reciting that the client agreed to the representation despite those risks. That sequence is informed consent confirmed in writing.20 The writing must reach the client, since the definition speaks of a writing the lawyer transmits to the person whose consent it confirms. A confirmation that stays in the lawyer’s files gives the client nothing to read, nothing to correct, and nothing to point to later.
Sometimes neither the client’s writing nor the lawyer’s confirmation is feasible when the client agrees. Comment 20 to Rule 1.7 then requires the lawyer to obtain or transmit the writing within a reasonable time afterward.21 The allowance covers only the case in which a writing cannot practicably be produced at the moment of consent, and the word “promptly” in the definition points the same way. The longer a confirmation trails the conversation, the more it looks like an after-the-fact reconstruction, and the less it protects anyone against a later disagreement about what was said.
Lawyers tend to go wrong here by counting their own record-keeping as the writing.
Had the lawyer emailed the client a short recital of the agreement, the identical conversation would have satisfied the condition, because the writing would have reached the person whose consent it confirms.
The commentary states two reasons for the writing: to “impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.”22 The first answers the risk of a hasty yes. A client pressed for a quick answer on a call may treat the matter as routine, while a document that sets out what is being accepted invites a second look and a second question. The second answers the risk of competing memories. Without a document, a quarrel over what the client was told and agreed to turns on two recollections of one conversation, and a document lets the dispute be resolved from the record. Requiring confirmation instead of a signed instrument keeps the process workable, since consent can be given in the moment and memorialized promptly.
The writing also cannot do the work that disclosure does. Comment 20 states that the requirement of a writing is no substitute for the lawyer’s full disclosure of the risks and advantages of proceeding, which ordinarily should be presented in a face-to-face conversation with the client.23 The phrase “informed consent, confirmed in writing” therefore contains two requirements that are tested separately. A client who signs a polished waiver form that the lawyer never explained has supplied a writing but has not given informed consent, since a document can record an understanding and cannot create one. A lawyer who gives a thorough explanation and takes an oral yes, with nothing ever sent or signed, has satisfied the first half and failed the second. A stem that dwells on only one half is inviting the answer that the other half is still missing.
Rule 1.7(b)(4) is deliberately light on the form of the writing. It demands confirmation, not the client’s signature. Other rules ask for more. Rule 1.8(a), which governs a lawyer’s business transaction with a client, requires extensive disclosure and the client’s informed consent, in a writing signed by the client, to the terms of the transaction and the lawyer’s role in it.24 A cautious lawyer may have every conflicted client sign, because that documentation is good practice, but a missing signature is not by itself a failure of the Rule 1.7(b)(4) condition.
States may vary the formality. Florida’s Rule 4-1.7(b)(4), quoted in Furman v. Furman, accepts informed consent that is “confirmed in writing or clearly stated on the record at a hearing.”25 Consent stated in open court is recorded in the transcript, which supplies the record a document would otherwise supply. Unless a stem signals Florida or another state’s version, the Model Rule governs, and the consent must be confirmed in writing.
Each Affected Client’s Consent
The fourth condition of Rule 1.7(b) speaks of individual people: the lawyer may proceed only if “each affected client gives informed consent, confirmed in writing.”27 The word “each” matters whenever the lawyer has more than one client, because a concurrent conflict puts the loyalty owed to every one of them at risk. Loyalty runs from the lawyer to a particular client, and that client defines what serves the client’s own interests, so only that client has authority to accept less of it. A co-client holds no such authority over someone else’s loyalty, however close the two may be. One client’s agreement therefore cannot stand in for another’s, even when the clients share a household, a business, or an objective. The shortcut tempts in one direction: the client who engaged the lawyer or pays the bills is easiest to reach, and the other client is the one most likely to be overlooked.
The agreement must also be the client’s own act. The lawyer must obtain an affirmative expression of consent and may not assume it from silence, although consent may be inferred from what the person does afterward.28 A client who says nothing may be confused, may be deferring to someone else, or may not have realized that a decision was being requested. In a joint representation that ambiguity falls hardest on the client with less power, such as a spouse who defers to the partner who manages the money. The treatise’s discussion of a mother adding her son to her bank account makes a related point in another setting: the possibility of undue influence must always be considered, and where the mother lives in the son’s home, the son may overreach without any overt threat.29 A lawyer asking for consent should likewise ask whether the agreement belongs to the client or to the person standing nearby.
A stem will often ask whether the signature of the client who hired the lawyer is enough to let the lawyer act for a second client who sat through the meeting and raised no objection.
The husband’s signature settles only the husband’s side of the condition. The wife’s loyalty interest is independently at stake, so an affected client has still not consented, and the cure is to explain the risks to her and ask her directly.
Consent also reaches only as far as the client understood and accepted. A conflict outside what the client agreed to is one for which the lawyer holds no consent, a limit the discussion of advance waivers below develops.
A client may also withdraw consent. The power comes with the client’s control over the relationship, since a client may end the representation at any time.30 Revocation ends the lawyer’s authority to act on that client’s consent, but a harder question follows when other clients remain. Comment 21 to Rule 1.7 says that whether the revocation precludes the lawyer from continuing for the others depends on the circumstances, including the nature of the conflict, whether the client revoked because of a material change in circumstances, the reasonable expectations of the other clients, and whether material detriment to the other clients or the lawyer would result.31
No single factor settles the question, because the four together weigh what the lawyer can still do for the remaining clients. The nature of the conflict asks whether the lawyer could serve the others without turning on the client who left. A revocation that follows a real change in circumstances, such as a sharp divergence in the clients’ interests, bears on whether the joint arrangement can still function at all. The other clients’ expectations and the detriment they would suffer if the lawyer left in mid-matter protect people who relied on the arrangement. That reliance is why the original disclosure should explain the consequences of a later withdrawal of consent by any client, including, where relevant, that the lawyer would withdraw from representing all of them.32 The later section on joint representation takes up what happens when a conflict worsens after the work has begun.
One last obstacle can keep consent from ever being obtained. To secure a client’s informed consent the lawyer must describe the other relationship or interest that creates the conflict, and in a multiple-client setting that description may touch another client’s confidential information, which the disclosure must address.33 If a complete explanation would require revealing that information without the other client’s permission, or if the lawyer is unwilling to explain, consent cannot be secured.34 An agreement made without the facts that bear on the risk is not informed, and the duty of confidentiality to the second client does not give way so that the first client can be asked. If the second client permits the disclosure, the obstacle disappears. If that client refuses, the conflict cannot be waived. The difficulty also touches Rule 1.7(b)(1), which requires the lawyer to reasonably believe that competent and diligent representation can be given to each affected client.35 A lawyer who must withhold from one client the very facts that client needs in order to decide can hardly hold that belief.
Advance Conflict Waivers
Nothing in Rule 1.7(b)(4) limits the requirement of informed consent, confirmed in writing, to conflicts that already exist when the client agrees.37 Comment 22 to Rule 1.7 confirms the reading: the consent requirements apply both when a client waives a conflict after it has arisen and when lawyer and client agree in advance that the client consents to a conflict that may arise later.38 An advance waiver is thus the informed-consent standard applied to the future, with no separate doctrine behind it. What changes is how hard the standard is to meet.
The practice exists because some conflicts are predictable. A firm that serves many large clients will foresee that it may someday be asked to act against one of them in a matter unrelated to the work it does for that client, and negotiating a fresh consent each time would be slow and would give the first client a veto at the worst moment. The difficulty lies on the client’s side of the bargain. A client who consents to an existing conflict can see the other client, the other matter, and the way the interests collide. A client who consents in advance sees only the words of the waiver and must imagine a risk that has not materialized. The validity of a prospective waiver therefore depends on how far the client could reasonably appreciate the nature of the risk and so give an intelligent assent.39 Specificity, experience with legal services, independent counsel, and unrelated subject matter all serve as proxies for that appreciation.
Specificity comes first, and Comment 22 draws the line plainly. When “the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.” When the consent is general and open-ended, it “ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.”40
The signature in that scene proves only that the client agreed to the words on the page. The informed half of informed consent asks what the client understood about the material risks and alternatives, and a sentence that describes no risk cannot supply that understanding. A waiver also reaches only as far as the client reasonably grasped when signing, so a conflict outside that range is one for which the lawyer holds no consent. A specific waiver gives the client something to evaluate, because the kind of adversity it names is the kind the client can picture and price.
The manufacturer’s waiver succeeds on every proxy at once, but Comment 22 shows that the factors can work separately. Even a waiver broad in scope may be upheld if the client is an experienced user of the legal services involved and is reasonably informed about the risk that a conflict may arise.41 Such a client already knows how large firms operate and can assess a general description of the risk without a detailed walk-through. A broad waiver is especially likely to be approved when the client had independent counsel in negotiating it, since a lawyer on the client’s side has explained the exposure and bargained over its terms, or when the waiver covers only future conflicts unrelated to the subject matter of the representation.42 The unrelated-matter limit lowers the stakes, because the firm’s work for the first client gives it little reason to shade that work and few confidences that could help the other side.
A stem that describes a sophisticated corporate client invites the conclusion that any waiver it signed is valid, and that conclusion overreaches. Sophistication is one factor in whether the client could appreciate the risk, and it sits alongside the waiver’s wording, the presence of independent counsel, and whether the future conflict touches the subject of the current work. Even a fully effective advance waiver satisfies only the consent condition of Rule 1.7(b)(4). A conflict that fails the reasonable-belief, legal-prohibition, or same-proceeding condition remains non-consentable however broadly the client agreed in advance.