The concept of “informed consent,” including “informed written consent,” is one of the most important—and frequently referenced— terms in the California Rules of Professional Conduct (CRPC). It appears in twelve different rules, including: CRPC 1.2 (Scope of Representation and Allocation of Authority); CRPC 1.6 (Confidential Information of a Client); CRPC 1.7 (Conflicts: Current Clients); CRPC 1.8.1 (Business Transactions with a Client and Pecuniary Interests Adverse to the Client); CRPC 1.8.2 (Use of Current Client’s Information); CRPC 1.8.6 (Compensation from One Other than Client); CRPC 1.8.7 (Aggregate Settlements); CRPC 1.9 (Duties to Former Clients); CRPC 1.11 (Special Conflicts of Interest for Former and Current Government Officials and Employees); CRPC 1.12 (Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral); CRPC 1.18 (Duties to Prospective Client); and CRPC 3.7 (Lawyer as Witness). Moreover, CRPC 1.4(a)(1) requires a lawyer to “promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required….” Despite its frequent reference, the term is one of the most often overlooked and ignored.
CRPC 1.0.1(e) defines “informed consent” as “a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” Subsection (e-1) provides that in the case of “informed written consent” the disclosure and consent must be in writing.
The keyword is “informed.” “To be informed, the client’s consent … must be based on disclosure of all material facts the attorney knows and can reveal.”(Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Company, Inc. (2018) 6 Cal.5th 59, 84.) As Comment [4] to CRPC 1.0.1 states, “The communication necessary to obtain informed consent or informed written consent will vary according to the rule involved and the circumstances giving rise to the need to obtain consent.” In other words, there is no one-size-fits-all disclosure for obtaining informed consent from a client. Rather, what information must be conveyed is entirely dependent on the circumstances, but must be sufficient to allow a client to make an informed, reasoned decision after considering all of the relevant available information and the potential consequences of that decision. Lawyers would do well to pause and consider exactly why a disclosure is necessary and what would make a client’s consent “informed” when making their disclosures, as well as whether the disclosure and consent must be in writing. After doing so, it is clear that disclosure templates should be just a starting point, and require substantial modification tailored to each individual case and situation, including the sophistication level of the client.
About the author:
Adam Koss is a partner at the Koss Firm, where his practice focuses on ethics and professional liability, including risk management and malpractice claims. He is certified by the State Bar of California Board of Legal Specialization in Legal Malpractice Law, and is a member of the State Bar’s Committee on Professional Responsibility and Conduct (CORPAC).
