Ethics in Contract Drafting

As academics, we all keep some form of a list of the ideasor 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 takeup the topic of ethics in contract drafting and negotiation.  A topic that had been largely leftunexplored – until now.  ProfessorGregory Duhl (William Mitchell) has posted to SSRN a manuscript, The Ethics of Contract Drafting.  Here’s the abstract:

This Article provides the firstcomprehensive discussion of the ethical obligations and duties to non-clientsof 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 lawyermisconduct under the disciplinary rules should be consistent with the purposesof contract law, one of which is to promote trust between contracting parties.Additionally, the Article discusses lawyer liability for negligence tonon-parties in contract drafting and contends that lawyers should be liable tonon-parties only when they are third-party beneficiaries to the contractbetween the lawyer and client for the lawyer‘s services. The Article concludesby arguing for a functional set of ethical rules for lawyers drafting contractsthat 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 itis done well.  But I am nothingother than thankful to Prof. Duhl for writing this important article, andhaving done it in such an organized and readable way. 

Ethics in contract drafting is a subject I broach with myclass when we talk about exculpatory clauses and non-competes – namely, whetheran attorney has any ethical duty to the other party (a non-client) when theexculpatory clause or non-compete she is inserting in the contract is eitherunenforceable or “iffy.”  I have never been sure of the answers to any of my ethicshypos.  Thankfully, I now have auseful resource and framework, and asource of new hypotheticals.

[Meredith R. Miller]