October 2017 • Volume 105 • Number 10 • Page 52
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Inform Yourself about Informed Consent
Nearly a third of Illinois ethics rules require lawyers to get a client's informed consent before proceeding. So what is "informed consent"? Here's a look at the concept and the issues it raises.
What do these actions have in common: limiting the scope of a representation, going into business with a client, revealing a client's confidential information, accepting compensation from someone other than the client to represent the client, proceeding with a representation notwithstanding a conflict of interest, delegating responsibility for part of a representation to a lawyer outside your office, and dividing a fee with a lawyer not in your firm?
The answer: they all require a client's informed consent. Seventeen (out of 54) Illinois Rules of Professional Conduct ("IRPC") require a client's informed consent before the client's lawyer may take certain actions. An eighteenth Rule subjects a lawyer to professional discipline for not promptly communicating with a client about circumstances that require informed consent. IRPC 1.4(a)(1). Clearly, it's an ethical obligation all lawyers need to understand.
When is consent 'informed'?
What is informed consent? The term is defined, at least generally, at IRPC 1.0(e). 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 alternative to the proposed course of conduct."
Consent is informed, the Comments explain, when it is given after explaining (1) the facts and circumstances that apply to the situation, (2) the advantages and disadvantages of the proposed action, and (3) any options and alternatives. IRPC 1.0, Comment . Stated slightly differently, the Illinois Supreme Court found a lack of informed consent where the lawyer failed to explain "possible ramifications" and "potential consequences" of a proposed course of action to the client. In re Ingersoll, 186 Ill. 2d 163 (1999).
And consent - what's that? Silence isn't good enough. IRPC 1.0, Comment . Nor is there "implicit" consent. In the Matter of S.S., 09-CH-102 (Hearing Board July 26, 2011) Administrator's motion to approve and confirm allowed, M.R. 25453 (Sept. 17, 2012). Some affirmative response is required, although consent can be inferred by conduct once a client has been adequately informed. IRPC 1.0, Comment .
Written consent: Usually not required, often helpful
Of course, the clearest way to show consent is to document it in writing. Some Rules require it, such as 1.5(c)(contingent fee agreements), 1.5(e)(2)(fee divisions with lawyers outside the firm), and 1.8(a)(3)(business transactions with a client). Most do not. This is a departure from the ABA Model Rules, particularly with respect to conflict-of-interest related rules.
The rationale for Illinois' unique treatment of conflict-related consent seems sound. Back in 2000, a joint ISBA/CBA Committee on Ethics noted that requiring a writing in most conflict situations was unnecessary and risked adding delay and expense to a representation. It was also viewed as elevating a technicality over the substantive question of whether consent was given.
Nevertheless, the lack of a writing requirement can be a trap for an unwary lawyer. At least one older disciplinary case concluded that the absence of a writing, even though not required by a given Rule, was some evidence that no consent was given. In the Matter of T.O., 04-CH-115 (Hearing Board, Jan. 26, 2007) Administrator's petition for leave to file exceptions denied, M.R. 22181 (Mar. 17, 2008).
Even when not required, obtaining written consent eliminates the risk of a finding that no consent was given (it doesn't, however, eliminate the issue of whether consent was informed). The best practice - especially in conflict situations where there is time to identify, consider, and address the conflict - is for a lawyer to obtain written consent.
When consent is irrelevant
Based on recent disciplinary actions, lawyers should be careful in a couple of specific areas. The first is under IRPC 1.8(a), when lawyers enter into business transactions with clients. These situations are rife with potential conflicts, second guessing, and "buyer's remorse." Because these transactions are subject to disciplinary scrutiny, informed consent in writing is required.
A second problematic area seems to be when a lawyer publically reveals (including in open court) confidential client information. Here too, lawyers should be extremely careful to reveal only that information the client has consented to or otherwise authorized revealing to carry out the representation.
So, is informed consent always a defense to a lawyer's otherwise improper conduct? No. For example, a client may not have a sexual relationship with his or her lawyer despite having consented. IRPC 1.8, Comment . Also, conflicts that involve a representation prohibited by law or an attempt by the lawyer to represent both sides in a matter before a tribunal are improper despite a client's consent. IRPC 1.7(b)(2) and (3). And in conflicts where a lawyer seeks to represent both sides in a transaction, such as the sale and purchase of property, it has been suggested, albeit not explicitly found, that consent is irrelevant. See ISBA Professional Conduct Advisory Opinion 17-04 (Mar. 2017).
The need for informed consent in various dealings with clients should not come as a surprise. It is part of almost one-third of all ethics rules and is a substantial part of building good client communication. The concept is also reasonably well defined in the IRPC. The key is understanding when you need it, how to get it, and when you know you have it.
Charles J. Northrup is the ISBA general counsel.