The Evolving Doctrine of Informed Consent in Colorado
| Publication year | 1994 |
| Pages | 591 |
| Citation | Vol. 23 No. 3 Pg. 591 |
1994, March, Pg. 591. The Evolving Doctrine of Informed Consent in Colorado
The measure of duty owed by an attorney to his or her client is that the attorney must employ that degree of knowledge, skill and judgment ordinarily possessed by members of the legal profession at the time the task is undertaken.(fn1) It appears that a client is incapable of making an informed decision (or judgment) unless counsel gives the client sufficient facts to make an informed decision. Further, the client presumably must be presented by counsel with meaningful alternatives in any matter needing a decision, as well as the pros and cons associated with each alternative, so the client has the opportunity to make the best decision possible for himself, herself or itself under the circumstances.
This article discusses the doctrine of informed consent and how that doctrine is taking shape in Colorado.
EC 4-1 of the former Code of Professional Responsibility ("Code") discussed the attorney's fiduciary obligations to the client as follows:
A lawyer should be fully informed of all of the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant....
Another provision of the former Code, EC 7-8, concerned itself with the issue of informed consent. It stated, in part:
A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. The advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective view point. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. He may emphasize the possibility of harsh consequences that might result from assertions of legally permissible positions....
The new Colorado Rules of Professional Conduct, approved by the Colorado Supreme Court in May 1992, became effective on January 1, 1993. Rule 1.4 mandates that an attorney keep his or her client reasonably informed about the status of a matter and that the attorney explain each matter "to the...
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