4.2.5What counts as a "writing," and what counts as "signed" (Rule 1.0(n), (b))

Several rules turn on paper: a conflict waiver "confirmed in writing," a contingent fee "in a writing signed by the client." Rule 1.0 says what the words mean, and they are wider than the exam's facts make them look.

Rule 1.0(n) — writing, and signed. "'Writing' or 'written' denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A 'signed' writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing." So an email, a text message or a voicemail is a writing, and a name typed at the foot of an email, sent with the intent to sign, is a signature.

Rule 1.0(b) — confirmed in writing. "'Confirmed in writing,' when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of 'informed consent.' If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter."

"Confirmed in writing" (Rules 1.5(e), 1.7, 1.9, 1.11, 1.12, 1.18) is satisfied by the lawyer's own follow-up email after an oral yes; the client signs nothing. "A writing signed by the client" (Rules 1.5(c), 1.8(a)(3), 1.8(g)) needs the client's signature, electronic or ink.

The exam will show you a client who agreed by phone and a lawyer who emailed a confirmation the next morning. For a conflict waiver, that is consent confirmed in writing. For a contingent fee, the client must sign.