Informed Consent in Writing

Informed Consent in Writing

Rule 1.10(c) lets the affected client waive an imputed disqualification only “under the conditions stated in Rule 1.7,” so each condition in Rule 1.7(b) must be met before a waiver takes effect.¹ The preceding sections covered conditions that test the conflict itself, such as the lawyer’s reasonable belief that the representation will be competent and diligent.² The last condition, Rule 1.7(b)(4), tests the lawyer’s conduct instead: each affected client must give informed consent, confirmed in writing.³

The earlier conditions describe the conflict, and a lawyer cannot change them by trying harder. This one describes what the lawyer does: what each client is told, and what is put on paper afterward. Until both have happened, a conflict that a client could accept remains an unwaived disqualification. Because the rule speaks of each affected client, the conversation and the writing must reach every one of them, and one client’s agreement leaves another’s disqualification in place.⁴

Conflicts rules aim at the significant risk that a lawyer will compromise duties owed to clients, not at harm that has already occurred.⁵ A client who waives an imputed disqualification therefore accepts a risk before it materializes, and the two halves of Rule 1.7(b)(4) protect that acceptance in different ways. The explanation protects the quality of the client’s decision, since a client cannot weigh a risk that no one has described. The writing protects proof of the decision: it impresses on the client the seriousness of the choice and heads off later disputes or ambiguities about what the client agreed to.⁶ A careful explanation that is never confirmed in writing falls short, and so does a signed form that explained nothing. Each half is necessary, and neither can stand in for the other.

Informed Consent

The Model Rules define 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.”⁷ The definition builds in a sequence: the lawyer explains first, and the client agrees second. An agreement given before the explanation, or an explanation never followed by agreement, leaves the client without informed consent.

The agreement must be affirmative. When informed consent is required, the lawyer must obtain an affirmative expression of it and may not assume consent from silence, although consent may be inferred from the client’s later conduct.⁸ A firm that mails a conflict notice and treats the absence of an objection as assent turns the client’s inattention, confusion, or reluctance to confront the lawyer into permission, and the firm is the party that benefits. Requiring an affirmative answer keeps the decision with the client, the person on whom the risk falls. Conduct can show agreement, but it cannot supply the explanation that must come first.

How much information is adequate depends on the circumstances, including the client’s experience in legal matters and in decisions of this type, and whether independent counsel represents the client.⁹ The measure is the client’s actual understanding, so the same paragraph of explanation can inform one reader and leave another with nothing. A company advised by separate counsel is generally presumed to have given informed consent and normally needs less explanation, while an individual who has rarely used legal services needs a fuller one.¹⁰ The risk of a gap falls on the lawyer. A lawyer who does not personally inform the client assumes the risk that the client is inadequately informed and the consent invalid, because the lawyer knows how the conflict could hurt the client and stands to gain from the consent, while the client cannot know what was left out.¹¹

Warning a client that a conflict exists and asking for consent is not enough. The lawyer must disclose the possible effect on the representation, identify the other relationship or interest that creates the conflict, describe the hazards it poses to the lawyer’s loyalty and performance, and explain how independent counsel might handle those problems differently.¹² Each item answers a question the client cannot answer alone: without the other relationship the client cannot gauge the risk, without the hazards the client cannot weigh it, and without the alternatives the client has no reason to think that declining is a real option. In a multiple-client situation, the explanation normally addresses these matters.¹³

• the interests of the lawyer and the other client that give rise to the conflict;
• the options and tactical choices that the conflict would foreclose or make less readily available;
• the effect of the representation, and of obtaining the other clients’ consent, on the client’s confidential information;
• any material reservations that a disinterested lawyer might reasonably have about the arrangement if advising only this client; and
• the consequences of a later withdrawal of consent by any client, including the possibility that the lawyer would withdraw from representing all clients.

The imputation setting shapes what the explanation must contain. Lawyers in one firm may have little or no interaction on two matters, and confidential information can be screened from the other lawyer, which is why clients may be willing to consent and let each keep its preferred counsel.¹⁴ The firm’s plan for keeping the colleague’s work separate therefore belongs in the conversation, alongside the effect on the client’s confidential information that the multiple-client list requires.¹⁵ The amount of detail also tracks the conflict. Where the conflict arises solely because a proposed representation will be adverse to an existing client in an unrelated matter, knowledge of the general nature and scope of the work being performed for each client normally suffices to enable the clients to decide whether to consent.¹⁶ A conflict that comes closer to the handling lawyers’ confidences or judgment calls for the fuller treatment above.

Timing affects whether consent can be obtained at all. If a conflict or confidentiality issue arises in a dual representation and the lawyer never obtained written consent at the start, the lawyer may be forced to withdraw, and must withdraw from both clients if the lawyer cannot use independent judgment for each or cannot assure each that confidences will not be breached.¹⁷ The lawyer may try to obtain consent once the conflict has arisen, but the duties of loyalty and confidentiality will often make that nearly impossible.¹⁸ The lesson carries over to imputed disqualification: a firm does better to explain the risks before a conflict ripens than to ask forgiveness afterward.

Consent need not be all-or-nothing. Assuming informed consent, jointly represented clients might agree that the lawyer will not advise or represent any of them about claims they may have against each other, or that the lawyer will prepare documents recording the agreed terms of a transaction without advising the clients in negotiating those terms.¹⁹ A client who agrees on stated terms has consented to those terms, so the explanation and the confirmation should describe what was actually agreed.

The rule quoted in Griva v. Davison made a representation permissible when each potentially affected client consented “after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation,” and the lawyer could comply with all other applicable rules.²⁰ That wording centers on the conflict and its consequences and does not mention alternatives. The Model Rules definition asks for more, so a disclosure that described only the conflict and its dangers would fall short of it.

Written Confirmation

Once the client has been informed, Rule 1.7(b)(4) asks for a second thing: the consent must be “confirmed in writing.”²² The preceding subsection covered what the client is told and how the client answers. This one covers the record. The explanation makes the client’s decision genuine, and the writing preserves proof that the client made it and shows what it covered.

Rule 1.0(b) defines “confirmed in writing” as a “writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”²³ The definition offers two routes. On the first, the client produces the writing, for example by signing a consent form. On the second, the client agrees aloud and the lawyer promptly sends a writing that records the agreement. The second route fits the common case in which a client agrees in conversation, and it puts the task of documenting on the lawyer, who owes it and has the means to do it.

Nothing in the definition requires the client’s signature. A lawyer’s prompt message confirming an oral informed consent satisfies it even if the client never signs or replies, so a signature requirement should not be added to the waiver.²⁴ The word confirming carries weight of its own: the message records an informed consent the client has already given, and it cannot create one that the conversation failed to produce.

The writing need not exist at the instant of consent. Comment 20 to Rule 1.7 provides that if it is not feasible to obtain or transmit the writing when the client gives informed consent, the lawyer must obtain or transmit it within a reasonable time thereafter.²⁵ Two features of that allowance deserve attention. It depends on infeasibility, so a firm that could have sent a message the same afternoon gains nothing from it, and the definition’s own word, promptly, points the same way. And the duty stays with the lawyer, who must obtain or transmit the writing, so a client’s silence after the call does not relieve the firm of the task. Clients often agree during an urgent call or a meeting where no document is at hand, and insisting on paper at that moment would put valid consent out of reach, while the reasonable-time limit still produces the record soon enough to check against what each person remembers.

The writing supplements the explanation of risks and alternatives and never replaces it. Comment 20 emphasizes that the 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. It describes the writing’s own purpose as 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.”²⁶ Each function answers a weakness of a purely oral process. A client who has agreed in conversation may not feel the weight of the decision until it appears on paper, and a later disagreement over whether the client consented, or over what the consent covered, is hard to resolve when only memory remains. Neither function touches the quality of the explanation, which is why a document cannot cure a thin conversation.

A fact pattern that reports only a client’s oral agreement leaves open whether anyone documented it afterward, and that gap often decides whether the waiver works. When the firm explains the risks by phone, the client agrees, and the lawyer emails the client that same day stating that the client consented to the representation despite those risks, the consent is informed and confirmed in writing.²⁷

A firm can also build a record without having obtained consent worth recording.

The two failures run in opposite directions. In the first scene the substance is present and the record is missing; in the second the record is present and the substance is missing. Had the partner in the first scene sent a confirming message soon after the call, the identical oral consent would have supported a valid waiver. Had the firm in the second scene first held a conversation covering the risks and alternatives, the signed form would have completed the process. The writing is a second step that follows informed consent, and it cannot stand in for the first.