Informed Consent

Informed Consent

The first gateway in Rule 1.6(a) opens when the client gives informed consent, and it is the most direct of the three because the person the duty protects decides whether to release it.¹ Confidentiality exists so that clients can speak freely, which makes the client the holder of the interest and the one entitled to let part of the information travel outward. A lawyer who wants to share client information with a prospective lender, a reporter, a lawyer at another firm, or a family member can often get there simply by asking. The adjective carries the weight: a client who agrees without grasping what the agreement involves has not made the choice the gateway presupposes.

Informed consent therefore has two sides, the client's agreement and the lawyer's earlier effort to make that agreement meaningful. The lawyer often has something to gain from the disclosure, whether publicity, a business contact, or an easier settlement, and an uninformed “yes” costs the lawyer nothing while costing the client the protection of the duty. Requiring the explanation first puts the burden of building understanding on the lawyer, who is better placed to supply it. Four questions follow: what makes consent informed, how much explanation a given disclosure demands, whether a lawyer may assume consent, and how far a consent reaches once given.

The Informed Consent Standard

Rule 1.6(a) permits disclosure when “the client gives informed consent,” and the phrase has a defined meaning.² Under Rule 1.0(e), informed consent is a person's agreement 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.”³ In the confidentiality setting, the proposed course of conduct is one particular disclosure. The question is whether the client agreed to that disclosure after the lawyer explained what it risks and what the client could do instead.

The definition has three working parts. The first is the client's own agreement, which must be directed at an identified disclosure and not at the representation in general. The second is an explanation of material risks: how the disclosure could hurt the client by waiving a privilege, handing an adversary a useful fact, or putting the matter in the press. The third is an explanation of reasonably available alternatives, such as a narrower disclosure, a statement the client makes personally, or no disclosure at all. Risks tell the client what a yes will cost; alternatives tell the client whether the cost can be avoided. Because the explanation comes before the agreement, the sequence is part of the standard, and an explanation offered after the disclosure cannot supply the understanding the agreement was meant to rest on.

The standard has older roots. A physician must disclose to a patient the material risks of, and the available alternatives to, a course of treatment, and failing to do so and obtain the patient's consent is actionable negligence if the breach causes harm.⁴ Courts apply the same insistence on understanding to conflict waivers: in United States v. Agosto, the Eighth Circuit said that a party may waive its right to counsel unhindered by a conflict of interest “provided that waiver is knowing and intelligent.”⁵ The burden of explaining falls on the lawyer because the lawyer knows what releasing information does legally, and the client usually does not.

Acquiescence without that explanation is not informed consent. A lawyer need not tell a client what the client already fully understands, but Comment 6 to Rule 1.0 warns that a lawyer who does not personally inform the client assumes the risk that the client is inadequately informed and the consent is invalid.⁶ The risk lands on the lawyer, who relied on the agreement and was best placed to close the gap.

The scenes differ in what the lawyer said before the client responded, and that difference decides both outcomes. Had the second client answered with an emphatic yes, the missing explanation would still defeat the gateway, because the definition makes explanation a precondition of agreement. Exam stems often stress a client's cooperative attitude or business experience, but those facts show trust or sophistication, not that the client heard the risks and alternatives. How much explanation a disclosure calls for varies with the stakes and the client, as the next section shows, but the client must reach the decision understanding both the risks and the alternatives.

Rule 1.6(a) asks for informed consent and says nothing about a writing.⁷ The conflicts rules differ: they require informed consent “confirmed in writing,” a standard a lawyer can meet by taking oral consent and following up with a letter or email reciting what the client agreed to.⁸ Students often import the writing requirement into confidentiality because conflict waivers are so prominent, but a disclosure made on real oral informed consent satisfies the gateway. Documenting the consent is still good practice, because a dated confirming email gives the lawyer proof if the client later disputes what was agreed, a problem that arises below.

Calibrating the Explanation

Rule 1.6(a) makes informed consent a gateway without saying how much a lawyer must explain, and Rule 1.0(e) supplies the measure: “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”¹⁰ Adequacy is relative, so the amount of explanation that satisfies it changes from one disclosure to the next. A sentence of confirmation may suffice in one setting, while another demands a long conversation. Two variables drive the difference: the stakes of the disclosure, and what the client already understands, including whether independent counsel stands beside the client.

When a disclosure appears innocuous and the client well understands the nature of the information and the effect of revealing it, little explanation may be required. When the information is of greater value or the consequences of its release are likely to be more significant, the lawyer's explanation appropriately becomes more extensive.¹¹ The scale follows from the purpose of the explanation, which is to give the client enough understanding to make a real choice. Repeating what the client already knows adds nothing to that understanding, and a lawyer who recited every conceivable risk before every trivial disclosure would bury the warnings that matter. A thin explanation, by contrast, costs little when little is at stake and a great deal when the disclosure could waive a privilege or hand an adversary a decisive fact.

What counts as adequate also depends on the person asked: on that person's experience in legal matters and with the matter at hand, and on whether independent counsel represents that person.¹² A sophisticated, experienced client generally needs less explanation, and Comment 6 to Rule 1.0 observes that a person represented by independent counsel when giving consent presumably has been adequately informed.¹³ The presumption rests on a practical fact: independent counsel has already supplied the explanation the requesting lawyer would otherwise owe. A person who has rarely used legal services, who is not well educated, or who shows a lack of understanding or confidence deserves a fuller explanation, because for that person the gap between what the lawyer knows and what the client knows is widest.¹⁴

Both clients said yes, and the two yeses carry different weight because each explanation was measured against a different need. The general counsel needed only a reminder of facts she already held. The first-time client needed the explanation to create the understanding in the first place, and the stakes compounded that need, since damaging records in a third party's hands can be turned against him. Facts about experience, education, or separate counsel supply the second variable; facts about what the disclosure could do supply the first. The answer comes from how the two combine on the facts given.

The lawyer makes the calibration judgment, and makes it at the lawyer's own risk. A lawyer need not tell a client what the client already fully understands, yet “a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid.”¹⁵ A lawyer who guesses that a client knows enough, and guesses wrong, has no consent, and the prohibition in Rule 1.6(a) remains in force. That consequence argues for the fuller explanation whenever the client's understanding is in doubt.

Consent to report another lawyer's misconduct shows an explanation that reaches past the act of disclosure to its consequences. The reporting duty does not override the duty to maintain client confidences, so when a lawyer learned of the misconduct through the representation, authority to report usually depends on the client's consent.¹⁶ The lawyer should seek that consent only after the client understands the consequences, including the possibility of testifying in a disciplinary proceeding and the public attention that may follow.¹⁷ The disclosure itself is small, a single complaint, while the risks arrive later and fall on the client; a client who says “go ahead and report” without hearing about testimony and publicity has agreed to less than may actually happen. The lawyer may explain the value of the disciplinary process in protecting others, but the client makes the final decision.¹⁸

Consent Cannot Be Assumed

Rule 1.6(a) opens its first gateway only when the client gives informed consent, so the lawyer must obtain it before speaking.²⁰ When informed consent is required, the lawyer must secure an affirmative expression of agreement and may not assume agreement from silence, although agreement may be inferred from the client's later conduct once the explanation has been given.²¹ The rule is simple to state and easy to blur in practice, because a lawyer who wants to act can usually point to some fact that looks like permission. The most tempting fact is one every client supplies: the client handed over the information in the first place. Giving a lawyer a document, a name, or a map is how representation works, and it shows that the client wants the lawyer to know something. It does not show that the client agrees to the lawyer telling anyone else.

The reason for insisting on affirmative agreement appears when you test the alternative. Virtually every client gives the lawyer information, and virtually no client interrupts to forbid each later use of it. If either act counted as consent, the gateway would swallow the prohibition in Rule 1.6(a), because any disclosure could be defended afterward as something the client silently allowed. A client's failure to dissuade a proposed course also says nothing about whether the client understood it, since the lawyer knows what a disclosure does legally and the client usually does not. A lawyer who wants permission should therefore make certain, before asking, that the client has the information and explanation informed consent requires.²² An affirmative, informed “go ahead” also keeps the question of authority provable and keeps the decision with the client, which matters most where the disclosure could expose the client to criminal liability.

McClure v. Thompson shows the inference failing where the stakes were about as high as they get. McClure, held in jail, drew a map in his own handwriting showing where the victims' bodies lay and gave it to his lawyer, Mecca, who then made the disclosure the case turned on. Mecca later swore that McClure “did not orally or expressly consent to the disclosure” and that he had “inferred consent from the circumstances,” namely McClure's repeated calls asking Mecca to see him at the jail and the map McClure drew and handed over.²³ McClure told the opposite story. He insisted that he never gave permission, that he was reassured everything he told Mecca would stay confidential, and that Mecca pressured him into disclosing information and then spread it to his detriment without his knowledge or consent.²⁴

The case separates two questions that students tend to merge: whether the client agreed, and whether the lawyer first explained what the disclosure involved. On the first, the two witnesses told opposite stories. On the second, the record was Mecca's own testimony. Asked whether he had explained that revealing the location of the bodies could lead to evidence implicating McClure in their murders, Mecca answered no: he did not think he “had the presence of mind to sit down and analyze every single detail.” His concern at the time, he said, was the children's welfare, and McClure knew Mecca thought there was a chance the children were alive.²⁵ Whatever the answer to the first question, the second settles the matter. Mecca's concern for the children explains his motive and McClure's knowledge of that concern explains why Mecca cared, but neither tells McClure what a disclosure could do to him. The explanation exists so that the client can weigh the risks, and Mecca never put them before McClure.

The first scene gives the client what Mecca never gave McClure: an understanding built before the assent, so that the assent answers the question the Rule asks. The second scene shows that inference from conduct remains available, but only as a way of reading a client's response to an explanation that was actually given.

Exam stems in this area pile up facts that sound like permission: the client initiated every contact, supplied the document, and never objected. Each fact bears, at most, on whether the client wanted the lawyer to have the information, and none shows that the lawyer explained a particular disclosure and the client agreed to it. Ask first whether the lawyer sought agreement to a specific disclosure, then whether the lawyer explained the risks and alternatives beforehand. If either answer is no, the gateway is closed, however cooperative the client appeared.

Staying Within the Consent

Rule 1.6(a) opens its first gateway only when “the client gives informed consent,” and the permission that consent creates reaches exactly as far as the client's agreement and no farther.²⁷ The earlier sections asked whether a consent was informed and whether the lawyer obtained it affirmatively. A third question remains once both answers are yes: what did the client agree to? Consent is a grant of authority from the client to the lawyer, and a grant has edges. The client sets them along three lines, namely the information that may be revealed, the person who may receive it, and the purpose the disclosure serves, and the lawyer's own view of what would be reasonable or helpful cannot push any of the three outward. The structure of informed consent explains why. The lawyer explained the risks and alternatives of one particular disclosure, and the client weighed that disclosure. A different disclosure carries different risks that were never put before the client, so the earlier “yes” cannot stand in for a “yes” the client never gave.

The first lawyer matched the authorization on all three lines, including the decision to leave out medical history, which the client had never released. The second lawyer's intentions were kind, yet the owner approved one reader and one use, and a competitor weighing a joint venture is a different reader with different uses for the same numbers. Good motive changes nothing, because the gateway depends on what the client authorized, and the lawyer's reasons cannot supply what the client withheld.

Disciplinary decisions show the same boundary from the other side. The lawyers in them had no authorization at all and spoke on the strength of some motive of their own. Three motives recur, self-protection, retaliation, and disagreement with the client, and each fails for its own reason.

Self-protection is the motive that sounds most like a legal defense. Marzen, an Iowa lawyer seeking election as county attorney, publicly disclosed his client Doe's history with, and litigation involving, her former probation officer. It was undisputed that he learned the history in a confidential conversation with her and that she never consented to its disclosure.²⁸ He invoked Iowa's self-defense permission, Rule 32:1.6(b)(5), which lets a lawyer reveal information to the extent reasonably necessary to establish a claim or defense in a controversy with the client, to defend against a charge or claim based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the representation. A later chapter treats that permission in detail.²⁹

The Iowa Supreme Court rejected the defense. A lawyer may reveal client information to protect himself only in the appropriate forum and only to the extent necessary, and while telling the local media may have been necessary to defend Marzen's bid for county attorney, it was not necessary to defend him against the allegations in the disciplinary proceeding.³⁰ The court framed the question as whether a lawyer violates the confidentiality rules by disclosing client confidences that are also available in the public forum, and it held that Marzen's conduct violated Rule 32:1.6(a).³¹ The limits follow from the permission's purpose. A self-defense permission that reached any public forum would let every accused lawyer answer a client's complaint by publishing the client's file, and clients who complained would pay for it with exposure. Tying the permission to the forum where the accusation is decided, and to what the defense needs, keeps it from becoming a license to retaliate. An exam stem in which a lawyer defends his reputation to the press therefore describes a disclosure with no gateway, however sympathetic the lawyer.

The court observed that it had not previously imposed discipline based solely on disclosing confidential client information, only in conjunction with other misconduct. Discipline for the violation, it said, would appear to warrant a modest suspension of sixty days to three months when combined with aggravating circumstances, and it pointed to a sixty-day suspension imposed on a lawyer who revealed a client's confidential information for financial reasons and tried to demand withdrawal of an ethics complaint.³²

Retaliation is the second motive. In Ex parte Skinner, a client told the Georgia lawyer, Ms. Skinner, that the client had discharged her and retained new counsel, and then posted negative reviews of her on consumer websites. She responded by posting on the internet personal and confidential information about the client that she had gained in the professional relationship.³³ She petitioned for a Review Panel reprimand, the mildest form of public discipline, for the violation of Rule 1.6. The Georgia Supreme Court rejected the petition: it recognized mitigating factors but, given how little the record disclosed about the violation, would not approve so light a sanction.³⁴

Two features of those facts carry the lesson. The discharge ended the representation, yet the duty continued, because the court treated the posting as a violation of Rule 1.6 even though the client had already discharged her. And the client's public criticism gave no permission to publish anything from the file: a client who posts a complaint about the lawyer's service has shared an opinion of the lawyer, which says nothing about releasing what the lawyer learned in confidence. The criticized lawyer is also the lawyer with the strongest wish to answer, so a duty that bent to that wish would hold only when lawyers felt no sting.

Disagreement with the client is the third motive. In In re Diaz, the client was the Navy, and the lawyer was charged with revealing confidential information relating to the representation without the client's consent.³⁵ The Kansas hearing panel found that he revealed confidential client information without authorization. It reasoned that if he disagreed with the Navy's actions, he was duty bound to tell those with decision-making power within the Navy, and that he could not announce the disagreement or his reasons publicly, because a public disavowal would harm the client's interests and breach his fiduciary responsibility. The panel concluded that he violated KRPC 1.6(a).³⁶ The reasoning turns on who decides. The client decides its own conduct, and a lawyer's disagreement has an inside channel: advice, and appeal to the people who control the client. A lawyer who goes public makes himself the client's judge and spends the client's information to do it.

Violating the confidentiality rule subjects a lawyer to discipline by the bar. The rules do not themselves create an independent basis for criminal or civil liability, although in some jurisdictions a violation may be considered as evidence.³⁷ Liability can still arise from other law. In Perez v. Kirk & Carrigan, lawyers who had taken a client's sworn statement passed it to the district attorney without his consent, and a grand jury indicted him; the Texas court of appeals held that the mental anguish he suffered as a result could support a claim for damages.³⁸ Both systems answer the same worry: clients speak candidly to lawyers only if they can rely on the lawyer's silence.

The fourth step matters because the limit on a consent is not the limit on every disclosure. Implied authorization, taken up next, covers disclosures the representation itself requires, and the paragraph (b) permissions cover the narrow situations the Rule lists, so either may justify what the consent does not. A disclosure that exceeds the consent and has no other gateway is prohibited, and a motive such as self-protection, retaliation, or disagreement does not open a gateway of its own.