Should You Draft a Bad Contract for a Client?

When Unbundled Legal Services Confront Quality

Male lawyer researching in office
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In the age of unbundled legal services, do-it-yourself document preparation, and limited budgets, lawyers might find that their clients don’t want the best possible legal service. These clients just want to make do. In fact, such clients might not want a lawyer to draft an ironclad document for them at all. These clients might craft their own version of a document or download one from an online services provider or, who knows, borrow some language from some source or other and then just ask their attorney to eyeball the work and let them know if it’s good enough to go.

The question for the lawyer, of course, is this something she should do? Will the client benefit from such an undertaking?

Problematic Provisions

Probably anyone who has been in the legal business for a period of time has seen her share of poorly drafted contracts. These are the sort that are inappropriately vague or that leave terms undefined, the sort where a promisee will have to ask the promiser what she means because the verbiage found in the agreement is somewhat incomprehensible, not clearly written, in short, flat-out confusing, even shorter, embarrassing. If only every contract were as simple as offer, acceptance, consideration.

Is Less-than-Perfect Perfectly Okay?

The question is, when faced with such a contract in the hands of such a client, what should a lawyer do? Were we all still functioning in a time of more traditional legal services, the lawyer, of course, would likely craft a lengthy explanation of all that is wrong with the document or even toss that suggested template and start a new document from scratch.

But that is not what is happening here; in this scenario, not such an uncommon one, a client has a document, for better or worse, and wants to know if it will make do.

In an ideal world, of course, a client would approach a lawyer with instructions that he wants the lawyer to draft a contract, and he wants that contract to be ironclad.

The lawyer might provide cradle-to-grave representation of sorts, researching appropriate contractual terms, drafting the contract, negotiating, as needed, on behalf of the client with the legal representatives of parties to the contract, massaging and revising the terms of the agreement, as needed, and then assisting the client with any issues that arise after the deal is signed.

Of course, what has developed over time is that clients don’t necessarily want to pay what it will take to make a contract perfect. Indeed, they may be unable to pay what it would take to make a contract perfect. In point of fact, depending on the nature of the deal, they may not really need a contract to be perfect. The arrangement may be one involving relatively low stakes; it could be the sort where even if there is nonperformance, it is highly unlikely that one of the parties would be especially damaged or equally unlikely that a party would litigate. Again, the terms of the arrangement might be relatively trivial. Why pay top dollar for a steak when tofu will do?

In fact, a client might be quite comfortable with and even prefer a certain ambiguity in the contractual arrangement he is seeking to enter into.

The client might be aware that the parties likely to be signing this particular contract will probably not be represented by legal counsel, will probably not be lawyers themselves, will probably not challenge the terms of the deal, and will probably overperform despite the abstruseness of the arrangement. All your client may want you to do is make sure that there is no glaring omission or truly troublesome provision or anything likely to get the client into any seriously hot water.

Even as alternatives to full, or traditional, legal services have become more acceptable over time, and are even encouraged nowadays, lawyers might still sometimes be troubled by such limited-scope representations. The purpose of such arrangements, of course, is to increase the accessibility of legal representation at the outset.

Not everyone can afford an attorney, or a good one, every time they need a bit of legal help. Unbundled, or à la carte, legal services are likely to make legal assistance less expensive for the client. At least, that’s the way the system is supposed to work.

A Matter of Ethics

Limited-scope legal representation is, after all, permissible pursuant to the Model Rules of Professional Conduct. Rule 1.2(c) explicitly allows limited-scope legal representation provided that such representation is both reasonable and undertaken with the informed consent of the client.

Such a client may just want a bit of advice, a brief assessment of a proposed contract’s elements. Or the client may want her attorney to conduct some legal research regarding certain clauses in the agreement, or the client might just want the lawyer to represent the client should any problems arise. Whether the clarity of the language in the proposed contract is optimal may, indeed, be a bit beside the point.

Much will go to the subject matter of the contract, and the sophistication of the client, and the amount of consideration involved in the deal. Is the contract, after all, something that needs to be 100 pages long to protect your client from every foreseeable scenario? In that case, then perhaps a limited-scope representation should not be quite so limited. Where an otherwise highly competent client is just trying to be a bit of a penny-pinching one, a lawyer may need to remind that client not to be pennywise and pound foolish. In short, no one wants to save a few hundred bucks on attorneys’ fees only to be faced with a devastating lawsuit later on down the line. As with so much with respect to the law and the practice of it, whether a lawyer should draft a crappy contract or okay one written by someone else depends on many variables. As always, lawyers are obligated to follow applicable ethical rules and laws.

A lawyer may want to have both a thorough conversation with the client about the advantages and drawbacks of à la carte representations and also include explanations and appropriate disclaimers in the engagement letter.

Put Together a Checklist

A lawyer contemplating the drafting of a quick and dirty contract or the review of one already written within the context of a limited-scope representation may want to develop a standard checklist of points to consider in such situations and then tailor that checklist for any given client’s specific needs.

Such a checklist might help a lawyer review a document quickly, identify potentially troublesome phrases, contemplate who will be bound, whether successfully or not, by the arrangement, and for what purposes, and at what stakes. The enforceability of the arrangement might be assessed, and the risk of worst-case scenarios involving the deal identified and weighed. The checklist might also include ‘red-flag’ words or phrases of the sort about which reasonable minds might disagree — perhaps compelling, then, a greater refining of those terms — or that have been often litigated.

Whether and to what extent such a checklist is used will, of course, depend on the exact nature of the representation.

Develop Standard Clauses

In addition to using standardized forms available in commercial databases, a lawyer is also likely to develop her own personal, or firm, database of contractual terms and provisions so that, in fact, she does not need to start from scratch even when a full-service client wants a deal to be drawn up.

Given that representation of limited scope should only be provided where there is informed consent of the client, a lawyer’s client engagement letter should explain clearly what the terms of the limited-scope arrangement are and perhaps address how such an arrangement differs from more traditional legal services.

Take Good Notes

Even in dealing with such a client who has provided informed consent and who is knowledgeable about the law and the legal system, a lawyer should also keep detailed notes so that should a problem later arise, the lawyer can remind the client about pitfalls that were identified and cautions that were made that the client opted to disregard.

Playing to a Lawyer’s Expertise

Of course, clients who want to hire lawyers for soup-to-nuts representations are wonderful, but limited-scope representations can be viable arrangements for lawyers, too. A given lawyer may have well-developed but quite specific skills, such as researching contractual provisions or assessing contracts or negotiating them, but not others, such as litigating, that may be helpful both to the limited representation client and provide a bit of satisfaction to the lawyer in his own practice. After all, many lawyers might turn to someone else, whether in their own firm or via referral, for litigation assistance.

Should a Lawyer Draft a Less-than-Artful Contract?

A look at any database of court decisions should reveal that plenty of litigation has taken place over all sorts of contracts, some of which ended up being less than artful despite the good intentions of the lawyer drafting them or the full scope of legal services for which a client may have been paying. Where a client specifically requests a quickly drafted contract or one that is quite basic in its elements as part of a limited-scope representation, a lawyer might feel free to help in this way provided such an arrangement is reasonable under the circumstances. After, of course, making sure that the client is informed of the risks of such an approach and consents to the arrangement. Naturally, the lawyer, in so doing, also needs to adhere to ethical and legal requirements. In undertaking a representation of limited scope, a lawyer might also keep Model Rule of Professional Conduct 1.1 regarding competent representation in mind.