Tips on how to obtain ‘informed written consent’

While the ability of law firms to identify conflicts of interest has certainly been enhanced by the use of computers, some attorneys believe (erroneously) that resolving conflicts has become a technical or administrative task that does not require critical analysis.

However, after a potential conflict is identified, the California Rules of Professional Conduct require "informed written consent" from the clients before the representation can continue. As discussed below, the question of what constitutes "informed written consent" can be a complicated one, depending on the circumstances.

What Is "Informed Written Consent"?

A good starting place for this inquiry is the definition provided in Rule 3-310, which defines informed written consent as "the client's or former client's written agreement to the representation following written disclosure." "Disclosure" is further defined as "informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client."

As reflected by these definitions, attorneys often need to do more than simply identify the potentially adverse client and seek consent, without providing any further information. Instead, the purpose of these requirements is to enable a client to make an informed decision regarding whether to agree or object to a representation.

Attorneys of course are not required to predict the future as to the potential implications of the conflict, which can be especially difficult at the very beginning of a lawsuit. Instead, the definition requires disclosure of the "reasonably foreseeable" consequences. While this is a fact-intensive inquiry, there are some common issues that attorneys may want to address when disclosing certain types of conflicts. For example, when multiple current clients will share an attorney, the attorney may want to explain that the client is waiving the right to insist that the attorney only protect her or his interests as opposed to the collective interests of all clients sharing in the representation.

The comments to Rule 3-310 in fact specifically address "the concurrent representation of multiple parties in litigation or in a single transaction or in some other common enterprise or legal relationship," which might occur in the formation of a partnership for several partners, among other situations. While recognizing that the clients may want to utilize a single attorney for cost or efficiency reasons, the comments advise that attorneys must disclose the potential adverse aspects of the representation including, for example, the effect the representation might have on the attorney-client privilege.

Nonetheless, while the issues in certain types of representations may be apparent, attorneys should typically avoid using a template when seeking informed written consent, as the type and content of a disclosure required for effective consent will often vary depending on the facts and circumstances of the representation. Some facts to consider when determining the necessary disclosure include the sophistication of the client, the nature of the representation, prior representations, and the length of the relationship.

Leave Nothing to Imagination

Although requesting that a client consent to a conflict can be an awkward or unusual situation, attorneys can strive to be as clear as possible with respect to the potential risks. Rather than assume that the client can figure out how an adversity might develop, the rules inform how the disclosure should clearly and plainly articulate the risks so that a court can later determine that a client understood and accepted the risks when providing consent to the representation.

For example, in the context of potential conflicts, it is helpful to specify exactly what will happen if an actual conflict develops that precludes the continued representation. Clients may agree, for example, that the attorney may continue to represent one of the clients if an actual conflict develops. Or the clients may insist that an attorney simply withdraw from the entire representation if an actual conflict develops.

Whatever the course of action may be, it is helpful to reach an agreement with all potentially affected clients before the representation begins. From a client relations perspective, it is better to have a difficult conversation up front rather than risk the client feeling abandoned when the attorney wants to represent another client after a conflict develops. This often arises in the context of a joint representation of a long-time client and a newer client. If a conflict develops during the course of the representation, the parties may decide to agree that the attorney will continue the representation of the long-time client only, for example.

In addition, attorneys may choose to advise the client to seek the advice of independent counsel as to whether to agree to waive the conflict. Encouraging the client to seek another opinion can provide reassurance that the attorney is looking out for the client's best interests.

Document Disclosure and Consent

Unlike some jurisdictions, the California Rules of Professional Conduct specifically require that both disclosure and consent be made in writing. In addition to being required, having such communications in writing with the client may be helpful to avoid problems later.

Indeed, once problems arise, there could be different recollections about the extent of the disclosure, the clients' understanding of the risks, and whether the clients in fact consented to the representation. A thorough written record is helpful to avoid any ambiguity as to what the client knew of the potential conflict.

The key is to approach the resolution of conflicts with the same care and diligence applied to the provision of legal services. Attorneys that take a careless approach to resolving conflicts incur unnecessary risk.