Concept
Informed Consent Exception
Use of client information to the client's disadvantage (Rule 1.8(b))
Informed Consent Exception
Rule 1.8(b) carries its own escape route: a lawyer may not use information relating to representation of a client to the client's disadvantage "unless the client gives informed consent."1 The exception follows from the prohibition's purpose. The rule protects the client, and a client may give up a protection that exists for its own benefit, so long as the waiver is knowing and intelligent. As the Eighth Circuit has put it in the conflicts setting, a party may waive the right to counsel unhindered by a conflict of interest, provided the waiver is knowing and intelligent.2
The Model Rules give that standard a precise form. Under Rule 1.0(e), informed consent is a person's agreement 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, that course of conduct.3 Three things must therefore be true before the lawyer acts: the lawyer has explained the risks this particular use carries, the lawyer has described the realistic alternatives, including not going ahead, and the client has agreed.
The word "proposed" fixes the timing. The lawyer lays out the use in advance, and the client's answer follows. A lawyer who acts first and reports later asks the client to approve a completed act that the client had no chance to refuse. The conflicts rules explain why that fails: they aim at the risk of harm, not at harm that actually occurs, and "no harm, no foul" is not a principle of legal ethics.4 A lawyer who acted first and can point to a client who was not hurt, or who did not object, has not invoked the exception.
The duty to explain rests on the lawyer because the lawyer holds the knowledge. The lawyer knows how the information will be used, who is likely to notice, and what could go wrong for the client's plan, while the client sees only what the lawyer chooses to say. A client who cannot weigh those risks cannot knowingly accept them.
Two situations look like consent and are not. The first is notice. Telling a client that it may object, or that the lawyer intends to proceed, supplies no explanation of risks or alternatives, and the definition requires both.5 The second is silence. The lawyer needs an affirmative expression of agreement and may not assume consent from a client who says nothing, although a client's conduct can in some circumstances show agreement.6
The conduct is identical in both scenes, and the outcomes differ because of timing and content. In the first scene the client heard nothing before the bid and nothing about risk afterward. In the second the client received the explanation first and then made a choice.
How much explanation is enough depends on the circumstances. A client experienced in legal matters and in decisions of this kind generally needs less, and a client who is independently represented in giving the consent generally should be assumed to have been adequately informed. A person who seldom uses legal services, or who shows a lack of understanding, is owed a fuller explanation.7 The goal is understanding, and the same words can inform one client and leave another no wiser. A lawyer need not recite what the client already knows, but a lawyer who does not personally inform the client assumes the risk that the client was inadequately informed and the consent is invalid.
The form of consent is a separate question, and here Rule 1.8(b) differs from its neighbors. Rule 1.8(b) requires informed consent and mentions no document. Rule 1.8(a)(3) conditions a business transaction with a client on informed consent "in a writing signed by the client" to the essential terms of the transaction and the lawyer's role in it.8 Rule 1.8(g) bars an aggregate settlement unless each client gives informed consent "in a writing signed by the client."9 Those provisions spell out a signed writing and subsection (b) does not, so an oral consent that meets the Rule 1.0(e) standard satisfies the text of Rule 1.8(b). Each rule sets its own form of consent, and a lawyer whose conduct also falls under another rule must meet that rule's form. A written record is still good practice. A lawyer later accused of misuse will have to show what the client was told, and a letter or email recording the risks described and the client's agreement is the best available proof.
When the consent meets the standard, the lawyer may go forward, because the rule's own text lifts the prohibition for a consented use. The consent reaches only the course of conduct that was proposed and explained, since the definition ties agreement to that proposal. A lawyer who later goes further, by bidding on more of the catalog than the client was told about, has used the information without consent and must return to the client for a fresh explanation.