Informed Consent Under the Rules of Professional Conduct
| Publication year | 2011 |
| Pages | 109 |
2011, July, Pg. 109. Informed Consent Under the Rules of Professional Conduct
July 2011
Vol. 40, No. 7 [Page 109]
Whoops: Legal Malpractice Prevention
This Department is sponsoredby the CBA Lawyers' Professional Liability Committee to assist attorneys in preventing legal malpractice. For information about submitting a manuscript or topic suggestion, contact Andrew McLetchie-(303) 298-8603, a_mcletchie@fsf-law.com; or Reba Nance-(303) 824-5320, reban@cobar.org.
About the Author
David C. Little is a partner with Montgomery Little and Soran, PC in Greenwood Village, where he works primarily in the field of civil litigation-(303) 773-8100, dlittle@montgomerylittle.com. The author thanks James Angell and Ryan Polk for their help in creating the Appendix to this article.
Lawyers have a duty to communicate with clients as part of their basic professional and fiduciary obligations.(fn1) The duty derives in large part from the principal and agent characteristics of the lawyer-client relationship as described in the Restatement (Second) of Agency§ 381. A lawyer is obliged to keep a client reasonably informed about the status of a matter and to share with the client information about the progress, prospects, problems, and costs of the representation.(fn2) As a general proposition, the lawyer should tell the client about important case developments in a timely fashion as the case continues so that the client is aware of the progress of the matter.(fn3) These general principles are specifically addressed in Rule 1.4 of the Colorado Rules of Professional Conduct (Rules or Colorado Rules).(fn4)
The current Colorado Rules, which became effective on January 1, 2008, introduced concepts to improve communications between lawyers and clients. In addition to the traditional concept of consent after consultation, the Rules now address the concept of informed consent. This is more than just a change in nomenclature; it is a modification in the processby which a client consents to a proposal recommendedby the lawyer to pursue the client's objective.
The American Bar Association's (ABA) Ethics 2000 Commission (Commission) formally addressed the concept of informed consent when it drafted revisions to the ABA Model Rules of Professional Conduct (Model Rules) that included the processby which informed consent is acquired.(fn5) The new language, which was finalized in 2007, was then incorporated into the 2008 version of the Colorado Rules.
When the ABA Commission began reviewing it, the concept of informed consent was not a new one in Colorado. It was suggested as a part of lawyer-client communications as early as 1991 in an articleby Craig Fleishman published in The Colorado Lawyer.(fn6)
The ABA Commission modified the Model Rules after concluding that the directive for "consent after consultation" did not sufficiently define the lawyer's obligation. The Commission was careful to point out that the changes in wording were not intended to modify the substantive concept, but only to give more definitive guidance to the practitioner. Consent is and always has been the client's concurrence with or acquiescence in another's proposition. It is an intelligent choice to do something proposedby another. This has not changed. What has changed is the processby which the client's acquiescence is obtained and given. This article is intended to help practitioners understand this process to ensure compliance with the Colorado Rules.
Colorado Rule 1.4-Then and Now
Colorado Rule 1.4 as modified is more elaborate and more specific than the previous Rule and addresses both the timing and quality of lawyer-client communications. It encompasses every aspect of the representation, from scope of engagement to termination of the relationship.(fn7)
Rule 1.4 has always required the lawyer to keep the client reasonably informed about the status of a matter and to comply with the client's requests for information. The lawyer was directed to explain the matter to the extent necessary to permit the client to make an informed decision about how to continue. The Comment to Rule 1.4 in the 1993 Rules instructed lawyers to provide clients enough information so that clients could participate intelligently in decisions concerning the objectives of the representation and the means to accomplish those objectives to the extent a client could and wanted to do so.
With this general background in mind, it is worth analyzing how Rule 1.4 both remained the same and changed with respect to certain...
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