The Ethics of Contract Drafting
46 Pages Posted: 15 Feb 2010 Last revised: 9 Jun 2010
Date Written: February 1, 2010
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.
Keywords: Conscious Ambiguity, Contract Drafting, Fraudulent Representations, Iffy and Invalid Clauses, Lawyer Liability, Legal Malpractice, Model Rules, Professionalism, Scrivenor's Errors, Transactional Ethics
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