Nancy Moore, ‘Why Is There No Clear Doctrine of Informed Consent for Lawyers?’

Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled ‘Informed Consent in the Practice of Law’. In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients against their physicians for failure to obtain their informed consent to various medical procedures. In the decades since publication of this article, it is not surprising that legislatures have not enacted such statutes. What may be surprising, however, is that courts have not significantly expanded the availability of a legal malpractice action when the gravamen of the complaint is the lack of informed consent.

The purpose of this article is to attempt to explain why common law courts have not clearly adopted the informed consent doctrine in the legal context to the same extent as they have done so in the medical context. It suggests that a primary reason for this lack of development of informed consent in legal practice is the lack of clarity and consensus among courts and commentators concerning several separate but related concepts: the allocation of decision-making authority between lawyer and client, the lawyer’s duty to keep the client reasonably informed concerning the representation, and the lawyer’s duty to fully explain matters when the client’s consent is necessary. This confusion was evident not only in the ABA Code of Professional Responsibility that was in effect when Professor Martyn published her formative article, but also in the ABA Model Rules of Professional Conduct that were initially adopted in 1983. While some of the confusion was removed in subsequent amendments to the Model Rules, which were adopted as a result of recommendations by an ABA commission on which both Professor Martyn and I served, there continues to be significant confusion concerning these related concepts.

Speaking for herself, the author confesses that she now believes that the commission could have and should have done more to eliminate this confusion, including providing additional guidance concerning which actions lawyers are ‘impliedly authorized’ to take on behalf of clients and expressly requiring lawyers to obtain the client’s ‘informed consent’ for all decisions that are the client’s to make. However, with respect to the failure of relevant law outside the rules of professional conduct to clearly designate which decisions are for clients and which are for lawyers, the author rejects the conclusion that the Model Rules should have adopted the view of the American Law Institute that clients should have the right to instruct their lawyers so long as such instructions are lawful and do not require lawyers to violate their professional responsibilities. In the author’s opinion, there are normative reasons why courts have not uniformly embraced this view; as a result, the allocation of decision-making authority between lawyer and client involves highly contested issues that should not be resolved by fiat in rules of professional conduct. Thus she is satisfied that the commission rightfully declined to resolve the question of who decides when the lawyer and client fundamentally disagree over the means of the representation, fully cognizant that the failure to do so may reduce the likelihood that common law courts will adopt the informed consent doctrine in legal practice to the same extent that they have done so in medical practice.

Moore, Nancy J, Why Is There No Clear Doctrine of Informed Consent for Lawyers? (November 9, 2015). University of Toledo Law Review, forthcoming; Boston Univ School of Law, Public Law Research Paper No 15-48.

First posted 2015-11-11 07:01:25

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