A Malpractice Fight Shows the Substantive Implications of Copy-and-Paste

A client of the law firm Proskauer Rose has sued the firm for malpractice, seeking $636 million in damages. Robert Adelman alleges that because of a provision mistakenly included in a contract relating to control of a hedge fund, the hedge fund’s manager was able to seize Adelman’s stake in the fund. Adelman’s lawyers allege that Proskauer negligently copy-and-pasted the provision in question from another client’s contract.

This Reuters article includes the following drawn from Adelman’s pleadings:

But when [the Proskauer partner] reviewed the contract, Adelman alleges, she drew heavy brackets around the strategic transactions provision, circling language that gave broad authority to a partnership controlled by the hedge fund manager who was by then angling to oust Adelman.

Next to the provision, according to a reproduction of her notes that appears in an Adelman brief, she wrote a single word: “Fuck.”

A 15 August 2023 article on Law360 (here) says that the litigants were unable to settle their dispute in two days of mediation, so the case will be going to trial.

I’ve long observed that one drawback of copy-and-pasting is that it causes you to parrot, on faith, dysfunctional contract language. But another problem is that copying precedent contracts can result in your copying provisions that were relevant for the previous transaction but aren’t relevant for the new one, or omitting to add to the new contract provisions that weren’t relevant for the previous transaction but are relevant for the new one. Adelman alleges that this sort of mishap is exactly what happened in this case.

In 2014 I wrote about another such episode, but that was for a guest post on another blog that has since vaporized. For now, all I have is the opening paragaph, but I take the opportunity to air it again:

Although the way I’ve chosen to earn my living has its challenges (like any other), there’s one aspect of law-firm life that I don’t miss: the sense of panic that would come over me on realizing that I might have left something out of a draft contract or made some other drafting mistake. It could strike at any time, and the fight-or-flight hormones would immediately take over.

The way to avoid this kind of mishap, along with all the other inefficiencies of copy-and-pasting, would be to get a fresh start with each new contract. More about that soon, I hope.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

2 thoughts on “A Malpractice Fight Shows the Substantive Implications of Copy-and-Paste”

  1. Ken:

    This kind of mishap might also explain how we get now-endemic disclaimers that work in UCC sales of goods appearing in every services contract, where they ought not be needed. But the fact that they are universal means that it takes a brave soul to hit the delete key.



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