Thursday, March 18, 2010
As academics, we all keep some form of a list of the ideas or topics we are thinking of taking up in our scholarship. (On the “meat market,” I believe this is what they refer to as “research agenda.”) For some time, I have been meaning to take up the topic of ethics in contract drafting and negotiation. A topic that had been largely left unexplored – until now. Professor Gregory Duhl (William Mitchell) has posted to SSRN a manuscript, The Ethics of Contract Drafting. Here’s the abstract:
This Article provides the first comprehensive discussion of the ethical obligations and duties to non-clients of lawyers drafting contracts. It discusses fraudulent representations, errors, fraud, and "conscious ambiguity" in transcription, as well as "iffy" and invalid clauses, and argues that the standard for lawyer misconduct under the disciplinary rules should be consistent with the purposes of contract law, one of which is to promote trust between contracting parties. Additionally, the Article discusses lawyer liability for negligence to non-parties in contract drafting and contends that lawyers should be liable to non-parties only when they are third-party beneficiaries to the contract between the lawyer and client for the lawyer‘s services. The Article concludes by arguing for a functional set of ethical rules for lawyers drafting contracts that reflect the increasing emphasis on cooperation, rather than competition, in the contracting process.
When someone else writes the potential article on your list, there is a tendency to feel frustration at the preemption- especially when it is done well. But I am nothing other than thankful to Prof. Duhl for writing this important article, and having done it in such an organized and readable way.
Ethics in contract drafting is a subject I broach with my class when we talk about exculpatory clauses and non-competes – namely, whether an attorney has any ethical duty to the other party (a non-client) when the exculpatory clause or non-compete she is inserting in the contract is either unenforceable or “iffy.” I have never been sure of the answers to any of my ethics hypos. Thankfully, I now have a useful resource and framework, and a source of new hypotheticals.
[Meredith R. Miller]