TLIE Top Tip: New Terminology in the Rules – “Confirmed in Writing”
TLIE Top TipsLast week, we highlighted the newly defined phrase “informed consent.” This week’s Top Tip layers “confirmed in writing” onto informed consent. It is critical, and in some cases required, to confirm informed consent in writing because a lawyer cannot rely on a client’s informed consent unless it is “confirmed in writing within a reasonable time” after obtaining the informed consent. See, new Comment 1 to the Terminology.
Informed consent can be “confirmed in writing” two ways: (1) in writing by the person giving it, or (2) by promptly transmitting a writing from the lawyer to confirm an oral informed consent. This writing can be transmitted at the time consent is given, or, if it is not feasible to obtain or transmit a writing at the time consent is given, the lawyer must obtain or transmit the writing within a reasonable time after that. “Writing” or “written” includes “a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications.” Signatures include 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.”
TLIE suggests having a system for ensuring that when informed consent is required, it promptly be confirmed in writing, and that the writing is properly kept and stored as part of the client’s file. Best practices include sending and saving some form of written communication to the client restating what you believe their consent to be, coupled with a message similar to “please let me know by [date certain] if this is not your understanding, after which time I will proceed accordingly.” This is a healthy practice habit for informed consent given by the client in writing (because, among other reasons, the words the client chooses may be subject to interpretation), and it is a required procedure for informed consent given orally. As an added benefit, it will help avoid misunderstandings and may even strengthen your relationship with your client.
