Who Gets to Draft Contracts?

In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. That got me to wondering whether any such contract specialist would have to be a lawyer. In other words, if a nonlawyer works on a contract, does that constitute the authorized practice of law?

I’m not about to start exploring what state statutes provide in that regard, but with respect to the U.S., here’s what Corpus Juris Secundum Attorney & Client § 31 has to say on the subject (footnotes omitted):

The preparation of legal documents involves difficult or doubtful legal questions which, to safeguard the public, reasonably demands the application of a trained legal mind. Thus, acts and services which constitute the practice of law include drafting, and preparing legal instruments and documents, such as trust documents, real estate contracts, deeds, notes, mortgages, and releases, drafting, preparing, and causing a will to be executed, preparing, or advising in the preparation of, income tax papers and returns, and preparing and prosecuting patent applications. A lay person’s preparation of a corporate charter, bylaws, and related documents, which are important contractual documents and legal instruments, also constitutes unauthorized practice of law.

On the other hand, the drafting or preparation of simple, elementary, legal papers or documents may not constitute the practice of law. For example, the completion of a legal form which has been prepared by an attorney, where all that is done is filling in the blanks with missing information, does not constitute the practice of law. Moreover, a person ordinarily may draw a legal instrument to which he or she is a party without being engaged in the unauthorized practice of law.

This might be something to factor into any comparison of the roles of lawyers and contracts personnel, a topic I considered in this recent blog post. I’ll let Jeff and others tell me whether this is an issue, and to what extent, both in the U.S. and elsewhere.

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.