The Lawyer's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions

This Article will explore the problem of the attorney's duty to provide clients with adequate information to make informed decisions. It will discuss situations in which such a duty is appropriate, and suggest that a cause of action for informed consent must be limited to those fact patterns where courts have established the right of the client to make the decision. The analysis rejects establishment of a broad right of the client to control all aspects of the representation. The Article will first review the history of the development of professional liability law with particular emphasis on the medical profession, including an analysis of why informed consent has evolved as a cause of action. Second, the Article will review the development of the legal malpractice field giving particular attention to the failure of the courts to adopt a parallel informed consent doctrine for lawyers. Third, the Article will look at the evolution of ethical standards relating to the duty to keep clients informed, and it will address the problem of whether such a duty can or should be adopted as a standard of care in a legal malpractice action. Fourth, the Article will propose a limited cause of action grounded in tort, based upon the attorney's duty to keep the client reasonably informed in situations specifically identified in the ABA Model Rules of Professional Conduct.