Ethics Opinion Articles - NC State Bar Journal

Obtaining Informed Consent

By Alice Neece Mine

The Rules of Professional Conduct (“the Rules”) allow a client (or a former or prospective client) to consent to situations that would otherwise disqualify the lawyer from the representation or prohibit the lawyer from pursuing a course of conduct. When the Rules were revised this past spring, the standard for obtaining client consent was significantly clarified and a requirement for documenting the consent was added. Lawyers should take note of these global revisions to the Rules.

Why informed consent?

Throughout the Rules, as revised this spring, the phrase “consent after consultation” was replaced with “gives informed consent.” Before revision, the Rules allowed client consent to a conflict of interest following “consultation” with the client which included an “explanation of the implications of the common representation and the advantages and risks involved.” Rule 1.7, 1997 Rules of Professional Conduct. The terminology section of the 1997 Rules added little clarification of the duty to consult before asking a client to agree to an arrangement that would probably be beneficial to the lawyer and might be harmful to the client’s interests. “Consultation” was defined as “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” Rule 0.3, Terminology, 1997 Rules of Professional Conduct. As noted in the Report to the ABA House of Delegates of the ABA Ethics 2000 Commission on the Evaluation of the Rules of Professional Conduct, May 2001,

… “consultation” is a term that is not well understood and does not sufficiently indicate the extent to which clients must be given information and explanation in order to make reasonably informed decisions. The term “informed consent,” which is familiar from its use in other contexts, is more likely to convey to lawyers what is required under the Rules.

The numerous cases on informed consent to medical treatment help explain what is expected in the legal context.1 In McPherson v. Ellis, 305 N.C. 266, 270, 287 S.E.2d 892, ___ (1982), for example, the North Carolina Supreme Court observed,

Consent to a proposed medical procedure is meaningless if given without adequate information and understanding of the risks involved. Therefore, the standard of professional competence prescribes that a physician or surgeon properly apprise a potential patient of the risks of a particular treatment before obtaining his consent….[A] physician “violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.” (Quoting Salgo v. Leland Stanford, Jr. University Board of Trustees, 154 Cal. App. 2d 560, 578, 317 P.2d 170, 181 (1957)).

How much information and explanation is required?

“Informed consent” is described in Rule 1.0(f), Terminology, of the 2003 Rules as “denot[ing] the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.” Comment [6] to Rule 1.0, states that the lawyer must only make “reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision.” Information that must ordinarily be disclosed to the client includes the following:

- the facts and circumstances giving rise to the situation,

- an explanation of the material advantages and disadvantages of the proposed course of conduct,

- a discussion of options and alternatives, and

- in some circumstances, a recommendation to seek the advice of other counsel.

Rule 1.0, Cmt. [6].

Although the information and explanation given need only be “reasonably adequate” under the circumstances, adequacy is judged subjectively by considering the sophistication of the particular person who must make an informed decision. The “relevant factors” to this determination include:

- whether the client or other person is experienced in legal matters generally,

- whether the client or other person is experienced in making decisions of the type involved, and

- whether the client or other person is independently represented by other counsel in giving the consent.

What documentation is required?

Another global revision to the Rules of Professional Conduct requires most consents to be “confirmed in writing.” See e.g., Rule 1.7(b)(4), Rule 1.9(a) and (b), Rule 1.10(d), Rule 1.18(d). As explained in Rule 1.0 (c), this requirement can be satisfied with a written statement from the affected client or person or “a writing that a lawyer promptly transmits to the person confirming an oral informed consent.” Paragraph (o) of the same rule explains that an e-mail will suffice. The Rules must be read carefully, however, because some consents require more than a written confirmation from the lawyer. When the importance of the consent must be emphasized to the person giving the consent or when a consent may be subject to later dispute, as when a client consents to a business transaction with the lawyer, the Rules may require the consent to be confirmed in a writing signed by the client. See e.g., Rule 1.8(a) and (g).

Endnote

1. In 1976, the General Assembly enacted specific legislation, codified as G.S. 90-21.13, on consent to medical treatment that utilizes an objective test for determining whether the consent was informed:

(a)(1) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities.

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