Informed Consent in the Practice of Law

Informed Consent in the Practice of Law

1. Introduction

But informed consent may also come to issue in the setting of lawyer-client relations that are strictly academic. The modern law student is likely to perform some sort of legal work on behalf of a professor or program, which at times may involve a type of simulation where law is practiced in the service of some fictional interests. Any type of real work that furthers the interest of the one who has engendered it is practice, and it is arguable that a student doing such work is both client and attorney in a relationship that owes all professional duties to the client.

In words that are enduring, I am glad to invite the reader to join me in an examination of the concept of informed consent and the implications of this concept for the lawyer-client relation and as well the practice of law itself. We are the fortunate keepers of a jewel in the crown of the legal cognoscenti. The legal profession, more than any other, is a calling that sanctions the employment of intellect, and thus lawyers are gratified by both the challenges and the toil of their daily work. We are drawn from a generation of men and women who were taught to believe that work that yields no fruit is without value. At day’s end, the practice of law asks of us the resolution of disputes, the avoidance of unjust harm, and the accomplishment of eternal justice. Ultimately, nothing is more pleasing to the legal spirit than exercising our intellect to resolve a problem put before us by a client. Yet, this is not simply an academic exercise; it is an exercise of legal expertise and memory that is aimed at providing relief for a client and advancement for the client’s cause. Informed consent ensures that we do not forget our responsibility to the client while becoming engrossed in the discharge of our duties.

2. Importance of Informed Consent

Since the landmark Tarasoff ruling in 1976, the doctrine of informed consent has become increasingly fundamental in all aspects of professional practice, including law. The Supreme Court of California has since held that, as a matter of law, a client’s consent “must be obtained” and that an attorney who fails to obtain this consent or inform the client of the available alternatives has breached his/her duty to the client. Failing to meet this duty, which often results from a lack of communication, may limit the professional autonomy of the client. The doctrine of informed consent acts to ensure that the client understands the objectives of a given service and, through acquiring comprehensive information and advice, has the capacity to consent to or refuse a course of action. High Court authority has held that for consent to be valid, it must be an “informed consent”. Where a solicitor has failed to inform the client of a material risk pertaining to the service or procedure, which a reasonable person in the client’s position would be likely to attach significance or the doctor himself would be unlikely to undergo if in similar circumstances, this may constitute as professional negligence. It is thus essential to recognise the importance of the doctrine of informed consent so as to fully comprehend its crucial implications on the practice of law.

3. Elements of Informed Consent

The level of understanding will depend on the advice, the nature of the client’s decision, and the possible consequences of that decision. It is both impractical and unnecessary for a client to understand every bit of advice given to them by a lawyer. In the context of a criminal trial, for example, it may be best to advise a client to plead a certain way in order to minimize sentence or for the client not to give evidence. This advice would likely be valid but not acting in the best interests of the client. For more complicated or serious decisions, it would be necessary for a client to get comprehensive advice and for a decision to be postponed while the client considers it. Nevertheless, a lawyer must be sure that there is still a decision made at the end and verify the ability of the client to do this. Ideally, the client will make a decision based on a weighing up and understanding of the situations and possible courses of action. This is highly dependent on the level of advice and the way it is given and may require a client to inquire about future advice or alternative decisions. At the highest level, the client must understand what the lawyer is doing for them and be able to consider possible alternatives in employing another lawyer. A degenerated mental state or intoxication may stop a client from doing any of these, and it is likely impossible for a child to do more than understand the immediate decision and course of action.

In order for there to be informed consent in the context of a lawyer/client relationship, there are a number of elements that must be considered. At a basic level, informed consent is said to have been given based on agreement and the ability of the client to make that agreement. An agreement may be based on express terms where a client said yes or implied terms and agreement is indicated by the client’s conduct. In order to have agreement, both the terms and existence of the agreement between client and lawyer must be established. Therefore, a lawyer must do more than provide information and advise a course of action. They must ask for a decision on the course to be taken and confirm their willingness to act for the client. This, by definition, is not possible to do by a client who lacks the capacity to understand a situation and make decisions based on that understanding. Therefore, a client must be able to understand to a reasonable extent the advice provided by the lawyer in order to give informed consent.

4. Challenges in Obtaining Informed Consent

Finally, there was an indication in the interviews and participant questions that subjects did not always appreciate the reasons for information provision, confusing the consent request with the data collection phase. This shows that consent requests may often be ambiguous. Given these factors it is crucial to uncover ways of implementing informed consent effectively in practice.

Such misconceptions present an obstacle as participants who hold them may be less willing to provide consent. This will make it difficult to test whether informed consent results in less intrusive data collection, since they may feel that information sharing is obligatory if an option to refuse is not clearly stated. Failure to match consent scope to data collection underlies many other challenges in obtaining informed consent and has led to it being viewed unsystematically as a low priority addition to research. It is also an issue under the new GDPR laws which necessitate clear indications to what and why data is being collected and state that consent scope must match data processing scope.

Myth that asking for too much information is harmful. During our studies, respondents generally confused requests for unnecessary information with questions in unnecessary detail. This meant that they thought too much information was harmful since they only considered questions about optional items to be requests for unnecessary information. We attribute this to conflation between consent to question scope and consent to information sharing. Awareness of the difference between these two concepts is important for understanding what types of information are optional and the consequential effect on consent to data collection.

There are few decisions more fundamental to the practice of law, and yet more laden with risk, than choosing the information we obtain from our clients. As most lawyers know, problems in this area can result in conflicts of interest, violations of the duty of confidentiality, professional malpractice claims, and disciplinary actions.

5. Ethical Considerations

Once a firm or organization has decided to conduct an empirical study, it must make decisions regarding how information about the study will be conveyed to prospective participants as well as the nature of the consent that will be obtained from participants. This process of disclosure and consent spans several of the stages outlined above, from seeking a prospective participant’s agreement to be contacted to arranging how informed consent will be obtained from a participant. During the process of information exchange and seeking consent, the investigator is most likely to be faced with a situation in which the data subject has a legal right to access an electronic data set. However, because the investigator is also interested in the possibility of linking data for an empirical study, it may be difficult to adequately describe the risks and benefits that this activity poses, both now and in the future. Failure to provide adequate information about the nature and risks of specific data linkage activity may be seen as a violation of privacy protecting interests of the data access right holder. Limiting consent to certain aspects of the study may be difficult if the activity in question has the potential for substantive impact on the rights and interests of the access right holder. In circumstances where the investigator reasonably believes that the data linkage activity poses potential adverse consequences for the data subject, it may be the case that the only way to avoid violating privacy protecting interests is to defer the project, and it is important that legal counsel be sought in such instances. The consent-seeking process could be particularly complex in a situation where an empirical study is seeking to obtain consent from a parent on behalf of a child where the only possibility of data linkage involves the data of the child but the data sharing and access arrangements involve the parent.

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