Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Fall 10-1-2015

ISSN

0042-0190

Publisher

University of Toledo College of Law

Language

en-US

Abstract

Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients against their physicians for failure to obtain their informed consent to various medical procedures. In the decades since publication of this article, it is not surprising that legislatures have not enacted such statutes. What may be surprising, however, is that courts have not significantly expanded the availability of a legal malpractice action when the gravamen of the complaint is the lack of informed consent.

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