Last 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…