(b) “Confirmed in writing” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
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(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
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(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording and e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
If the Rules require a lawyer to obtain a client’s informed consent, confirmed in writing, the lawyer should at the outset provide the client with information sufficient to allow the client to understand the matter. At that point the client may give informed consent regarding the matter. For purposes of the Rule it is sufficient if the consent is confirmed in a writing sent by the client to the lawyer or the lawyer to the client.
Confirmed in Writing. If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing with a reasonable time thereafter.
The lawyer must make reasonable efforts to ensure that the client possesses information as to the law and the facts reasonably adequate to make an informed decision. Not all consents must be confirmed in writing to be binding, however. See, e.g., MRPC 1.2 (c) (providing that a lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent); MRPC 1.6(a) (providing that a lawyer with certain exceptions shall not reveal information relating to the representation of a client unless the client gives informed consent). Generally a client or other person who is independently represented by other counsel in giving the consent may be assumed to have given informed consent.
Adequate Information. What constitutes adequate information about risks and available alternatives will vary with the nature of the engagement. The lawyer must explain only those risks and alternatives related to the scope of the engagement. For example, if the client requests a limited service, such as preparing a power of attorney, the lawyer would not need to explain the possible ways to save estate taxes through a gifting program. However, the lawyer would need to explain the possible choices concerning the attorney in fact and any risks that one choice might have over another. The nature of the client’s request for limited services of itself would limit the need to explain risks and alternative courses of action.
