Most of us appreciate the opportunity to discuss ethical issues in our doctrinal courses. With that thought in mind, those who teach first-year contracts (or courses with a drafting component) may wish to read The Ethics of Contract Drafting, an article recently posted to SSRN and authored by William Mitchell law prof Greg Duhl (pictured). 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.
The article is being published by the Lewis & Clark Law Review.
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