Thoughts on an ABA Model Agreement

I recently noticed that MSCD is mentioned in a report on an ABA model agreement.

More specifically, 61 Business Lawyer 1197, published in May 2006, contains a report on the model limited liability company membership interest redemption agreement prepared by the Limited Liability Company Subcommittee of the Committee on Partnerships and Unincorporated Business Organizations, Section of Business Law, American Bar Association. (Try saying that fast three times!) Footnote 1 says, in part, as follows:

It is incumbent upon the drafter to see that the agreement clearly describes the desired transaction. The drafter would be well served to follow the guidance in HOWARD DARMSTADTER, HEREOF, THEREOF, AND EVERYWHEREOF—A CONTRARIAN GUIDE TO LEGAL DRAFTING (2002) [hereinafter “Darmstadter”] and KENNETH A. ADAMS, A MANUAL OF STYLE FOR CONTRACT DRAFTING (2004) to increase the readability of the final document.

I’m always happy when an article cites MSCD, but I couldn’t help noticing that the model agreement is, across the board, at odds with MSCD’s recommendations.

In theory, the usages on display in the model agreement could represent an ABA house style, albeit one that is traditional and markedly inefficient. But it was explained to me that each committee of the Section of Business Law is left to develop its own drafting usages. It follows that under this approach, contract drafting is considered a craft and as such is subject to the stylistic whims of individual drafters or groups of drafters.

I have an entirely different approach: Of the various ways to address a given issue, one will be the most efficient and the rest less efficient. The quality of a given lawyer’s drafting would improve if he or she were to use the most efficient usages, and the process of drafting would be vastly more efficient if all drafters were to do so. It is this concept that underlies MSCD.

The ABA’s to-each-his-own approach is that of innumerable law firms and law departments. But a crucial difference is that the ABA promulgates agreements that aspire to be models.

I trust that those who have contributed to the model agreement, and members of the Section of Business Law generally, will appreciate that I’m not out to denigrate their hard work but instead am trying to promote discussion. I am, after all, an ABA author—perish the thought that I should bite the hand that feeds me!