TLIE Top Tip: New Terminology in the Rules – “Informed Consent”
TLIE Top TipsEffective October 1, 2024, the Texas Disciplinary Rules of Professional Conduct will contain new terminology, including the definition of “Informed consent.” It is important to understand what this phrase means as it is used in amended Rules 1.08 and 1.09; new Rule 1.18; and unchanged Rules 1.01, 1.05 (comment 8), 1.06 (comments 2, 7, 8, and 9), 1.07 (comment 8), 3.08, and 6.05.
To have “informed consent”, a lawyer must obtain an agreement from a person to a proposed course of conduct only “after the lawyer has communicated adequate information and explanation about material risks of and reasonably available alternatives to the proposed course of conduct.” If a Rule, like Rule 1.06(c)(2), requires specific disclosures, then those must be part of the informed consent.
If your situation requires informed consent, you must include: 1) disclosure of the facts and circumstances giving rise to the situation, 2) an explanation of the material advantages and disadvantages of the proposed course of conduct, and 3) a discussion of the client’s or other person’s options and alternatives. See, new Comment 4 to the Terminology. In other words, boiler plate will not suffice. In order to ensure the consent is truly informed, the lawyer needs to evaluate the Rule which is requiring the consent, the facts and circumstances necessitating the informed consent, the ability of the person to make a decision, and whether to advise the person to consult with independent counsel. Id. As we will discuss more in next week’s Top Tip, it is also important (and often required) to obtain this informed consent in writing.
