We are all familiar with the phrase “informed consent” in the context of medical treatment.
It is less often used in the legal profession. But it is no less important.
Ethical rules require lawyers to keep their clients informed about significant developments and to obtain client consent to important decisions. In transactional matters, clients should be advised of the key terms of the deal. They should understand what they are signing and the consequences thereof.
In litigation matters, clients should be informed of all settlement offers and demands. Obviously, they must consent to any settlement.
Here are some tips on getting informed consent:
* Start with a written Representation Agreement. Document the scope of your involvement in all legal matters to avoid any confusion as to what you were hired to do. If you have not been hired to provide an assessment of the merits of a transaction, such a statement should be included in the engagement agreement in clearly identifiable terms.
* Advise, then document. Fully document the key terms of the transaction or agreement that the client is entering into.
* Keep it simple. Explain the risks in simple terms that the client can understand. Outline pros and cons.
* Take your time. Sit down with the client and review the terms of the agreement and the risks associated with the matter. Give the client time to consider what was discussed. Don’t create a pressurized, time-stressed climate in which to make decisions.
* Get feedback. Ask clients to explain out loud what their understanding of the agreement is. What they say might surprise you. Their understanding might be contrary to reality. Head off any confusion before the deal is done.
* Create a paper trail. Document your legal file with proof of the discussions you have had with the client concerning key provisions, associated risks, and advice given. A file memo could be the silver bullet to ward off a malpractice claim alleging lack of informed consent.
* Communication is key. Maintain constant contact with the client regarding the status of a matter—even if there is little or nothing going on. Nothing frustrates clients more than not hearing from their attorney for some time. Clients need to be made aware that you haven’t forgotten about them. Let them know you are still working on their case. Explain that there might be long lulls of inactivity that are simply part of the legal process.
* Employ a “full-court press” regarding client communication. Every means for communicating, whether it is a phone call, an email, or a description on an invoice is essential for the client to understand the ongoing status for their matter.
* Follow up. Make sure the transaction is carried out to completion. Make sure clients do what they have agreed to do.
Jay Reeves is an attorney licensed in North Carolina and South Carolina. He has practiced in both states and was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He writes the Risk Man column of practice pointers and risk management tips. Contact email@example.com or phone 919-619-2441.