Wisconsin Lawyer
Vol. 80, No. 9, September 2007

Obtaining Informed Consent

• Seminars Help You Comply with New Rules of Professional Conduct and New Trust Account Rules

by Dean R. Dietrich

Question

I understand that the new Rules of Professional Conduct require lawyers to obtain informed consent from a client for various decisions. What must a lawyer do to obtain informed consent?

Answer

The new Rules of Professional Conduct, effective July 1, 2007, redefine the standard that lawyers must meet to obtain a client's agreement to take certain actions related to the representation. The new standard of informed consent clarifies the nature and scope of information that should be discussed by the lawyer and client when considering what actions to take.

The definition of informed consent is found in SCR 20:1.0(f) and reads as follows:

"Informed consent denotes 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."

In the Comment to SCR 20:1.0, further guidance is given regarding what a lawyer must do to obtain a client's informed consent. The Comment provides as follows:

"The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct, and a discussion of the client's or other person's options and alternatives.

. . .

"In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent.

. . .

"Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter."

Situations that Require Informed Consent

The situations in which informed consent is required from the client under the Rules of Professional Conduct may be summarized as follows:

• decision whether to settle a matter;
• limitation on the scope of representation, provided the limitation is reasonable under the circumstances;
• permission for a lawyer to reveal information relating to the representation of a client, unless an exception applies;
• consent to the representation of two clients when there is a concurrent conflict of interest;
• agreement to the essential terms of a business transaction between a client and a lawyer along with the lawyer's role in the transaction;
• consent for a lawyer to use information relating to the representation of a client to the client's disadvantage;
• permission for a lawyer to accept compensation for representing a client from a source other than the client;
• permission from all clients for a lawyer to make an aggregate settlement of claims when the lawyer represents two or more clients;
• permission from a former client for a lawyer to represent another person in the same or a substantially related matter in which the other person's interests are materially adverse to the interests of the former client;
• permission for a lawyer to represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had represented a client and that client's interests are materially adverse to the person;
• permission from an appropriate government agency to allow a lawyer who formerly served as a public officer or government employee to represent a client in connection with a matter in which the lawyer previously participated personally and substantially while a public officer or government employee;
• permission for a lawyer who currently serves as a public officer or employee to participate in a matter in which the lawyer previously participated personally and substantially while in private practice or nongovernmental employment;
• permission for a lawyer who participated personally and substantially as a judge or other adjudicative officer or as arbitrator, mediator, or third-party neutral to represent anyone in connection with a matter in which the lawyer previously participated personally in that capacity;
• permission for a lawyer who has received disqualifying information from a prospective client to allow the lawyer to represent an affected client in a matter involving the prospective client; and
• permission for a lawyer to obtain an evaluation of a matter when the lawyer knows or reasonably should know that the evaluation is likely to affect a client's interests materially and adversely.

Information Lawyers Should Communicate in Seeking a Client's Informed Consent

The following guidelines are suggested to make sure that a client gives informed consent to a lawyer in situations in which a client's decision must be obtained:

• A lawyer's communication should include disclosure of all material facts and circumstances giving rise to the situation.
• A lawyer's communication should include any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct.
• The lawyer must communicate adequate information and explanation about the material risks of the course of conduct.
• The lawyer must communicate adequate information and explanation about reasonably available alternatives
• to the proposed course of conduct.
• Relevant factors lawyers should consider to determine whether information and explanation are reasonably adequate include: 1) whether the client or other person is experienced in legal matters generally; 2) whether the client or other person is experienced in making decisions of the type involved; and 3) whether the client or other person is independently represented by other counsel in giving the consent.

Conclusion

The most important element of informed consent is the requirement that lawyers communicate to clients the alternatives that clients should consider before making a final decision. The end result should be a better level of communication between attorneys and clients, which certainly is in everyone's best interest.

Wisconsin Lawyer