Thanks to the Legal Writing Prof Blog, I learned of an article entitled “The Ethics of Contract Drafting.” It’s by Gregory M. Duhl, associate professor at William Mitchell College of Law. It will be appearing in the Lewis & Clark Law Review, but for those who can’t wait, it’s available on SSRN by clicking here. 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.
I haven’t studied the ethics of contract drafting. It’s a worthy subject, but it has limited direct bearing on what I do. That’s why I’m pleased at the prospect of having the topic covered in one article. But I haven’t read it yet—I look forward to doing so.
By the way, Gregory, if you happen to read this, you might want to update your footnote on—gulp!—the significance of the words representation and warranty for purposes of contract drafting. Check out the second edition of my book and my several blog posts on the subject.
Finally, a question: Why do law-review copy editors insist on having articles refer to “this Article,” capital A? Do I say “this Car,” capital C?