On Saying a Draft Is Subject to Client Comments

Today I received the following inquiry from reader Ryan:

I’m curious if you have a view on a practice that continues to baffle me. In the process of negotiating tri-party or multi-party agreements and exchanging drafts or mark-ups via e-mail to a large distribution of the parties and their counsel, some attorneys always include something like the following: “Please note that [my client] reserves the right to further comment on the attached.” or “Please note that this draft remains subject to [my client’s] further review and comment in all material respects.”

The types of agreements I’m referring to are among large, sophisticated institutions. Is there some view that unless this is stated, it is in any way binding? In a non-consumer context that seems ridiculous to me. Instead, I find it counterproductive to receive a mark-up along with the expectation that I should review and respond when the transmittal message suggests that it may not reflect the views of any counterparty. Am I missing something?

Because my deal-making days are long behind me, I leave it to other readers to offer their thoughts.

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.