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Informed Consent in the Practice of Law

INFORMED CONSENT IN THE PRACTICE OF LAW

The doctrine of informed consent has deeper historical roots in the practice of law than in the practice of medicine. The modern rule that medical treatment cannot be given without the informed consent of competent patients did not arise until the late twentieth century, whereas a century earlier, courts already recognized that, like other agents, lawyers may breach their fiduciary duty to client-principals when they fail to provide them with sufficient information. In some respects, however, the legal profession may have lagged behind the medical profession. Thus lawyers, who played a critical role in developing the informed consent model in medicine, have been criticized for failing to adequately develop such a model for their own practice.

The legal profession has long recognized that lawyers may not reveal confidential information or represent conflicting interests unless the client consents after full disclosure. Because it has not always been clear precisely what information the lawyer must disclose to the client before acting, the American Bar Association (ABA) amended its Model Rules of Professional Conduct in 2002 to require the lawyer to obtain the client's informed consent, taking advantage of lawyers' familiarity with that term in the context of medical practice. The Model Rules also draw on language familiar in the medical context in defining informed consent to require the communication of "adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct" (ABA Model Rules, Rule 1.0[e]).

Aside from confidentiality and conflicts of interest, the use of informed consent doctrine in legal practice is unclear. The difficulty lies in determining which decisions are for the client (in which case lawyers are required to provide sufficient explanation for the client to make informed decisions) and which decisions are for the lawyer (with or without consulting the client). Certain decisions are clearly reserved for the clientwhether to accept a settlement offer and, in criminal cases, what plea to enter, whether to waive a jury trial, and whether the client will testify. In addition, there is agreement that the client defines the objectives of the representation. What remains unclear is how to distinguish between a client's objectives and the means of achieving those objectives (for example, when the client wants to win a lawsuit by asserting a particular right), how properly to allocate decision-making as to the means of the representation (for example, when the client does not want to pay for additional depositions), and whether there are some decisions lawyers may make without first consulting the client (for example, deciding what questions to ask a witness on direct or cross-examination).

As initially promulgated, the ABA Model Rules appeared to suggest that all means decisions were for the lawyer to make after consultation with the client. Aside from the difficulty of distinguishing between objectives and means, many believe that there are some means decisions that ought to be for the client to decide, particularly when they involve expenses or concern for third persons, as opposed to technical, legal and tactical matters. On the other hand, it would be inefficient to require the lawyer to consult the client prior to taking any action, especially when the matter is in trial. Case law has not resolved these issues; some courts state that a lawyer must obey all lawful instructions of a client, while others adhere to the traditional distinction between ends and means.

The amended Model Rules provide that lawyers may act without prior consultation when the action is "impliedly authorized" to carry out the representation (Rule 1.2[a]), as when the lawyer reasonably assumes that the client would not want to be consulted because the matter is highly technical and does not involve significant risk to the client. As to other means decisions, the Model Rules require the lawyer to reasonably consult the client, but do not prescribe how to resolve disagreements between lawyer and client, other than suggesting that the lawyer may withdraw from the representation when the lawyer has a fundamental disagreement with the client and that, conversely, the client may resolve the disagreement by discharging the lawyer.

A similar problem exists in medical practice. Historically, the failure to obtain the patient's informed consent to surgery or some other invasive procedure was treated in law as a battery. In the 2000s, most courts agree that the cause of action is better understood as deriving from the patient's right to self-determination rather than the right to reject a nonconsensual touching; therefore, they base the informed consent action in negligence rather than battery. The question arises, however, whether the physician must obtain the patient's consent to all treatment (and perhaps diagnostic) options, even when the proposed treatment is noninvasive, such as bed rest, and one or more of the options is not one that the physician would recommend. Some courts hold that a physician may not subject a patient to a course of treatment, whether invasive or noninvasive, without disclosing information that will enable the patient to intelligibly evaluate the available options and risks of each.

These courts also recognize, however, that it would be unduly burdensome to require physicians to explain in detail all treatment options in every case, such as when a physician proscribes one of several potentially appropriate antibiotics in treating a respiratory infection. Other courts refuse to apply informed consent doctrine to procedures or diagnostic options not recommended by the physician or to situations where the patient refuses the recommended treatment, fearing that recognizing such a duty would in effect require physicians to give a mini-course in medical science and would further suggest that physicians should defer their medical judgment to the patient's wishes.

The difficulty of determining when to use informed consent doctrine stems from the need to balance the individual's right to self-determination with other concerns. Like physicians, lawyers resist being forced to give detailed explanations of every exercise of professional judgment, because some explanations entail either excessive costs or unwarranted invasions of professional autonomy. Obviously there must be some limits to the reach of informed consent doctrine. One approach is to draw admittedly arbitrary lines between the objectives and means of a representation, or between invasive and noninvasive procedures (or recommended and nonrecommended treatment or diagnostic options). Another approach is to reject arbitrary line-drawing in favor of fact-intensive, case-by-case determinations of the proper allocation of decision-making between professionals and consumers, guided by the decisions reasonable consumers would presumably want to make. In any event, the precise boundaries of informed consent doctrine, whether in legal or medical practice, continue to be debated.

See also Contractualism; Discourse Ethics; Medical Ethics; Philosophy of Law, History of; Philosophy of Law, Problems of.

Bibliography

American Bar Association. Model Rules of Professional Conduct. Chicago: Author, 2004.

Burns, Robert P., and Steven Lubet. "Division of Authority Between Attorney and Client: The Case of the Benevolent Otolaryngologist." University of Illinois Law Review (2003): 1,2751,297.

Martyn, Susan R., and Lawrence J. Fox. Traversing the Ethical Minefield: Problems, Law, and Professional Responsibility. New York: Aspen, 2004.

Morries, Grant H. "Dissing Disclosure: Just What the Doctor Ordered." Arizona Law Review 44 (2002): 313371.

Strauss, Marcy. "Toward a Revised Model of Attorney-Client: The Argument for Autonomy." North Carolina Law Review 65 (1987): 315349.

Nancy J. Moore (2005)

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