Yesterday, a client asked me to take a look at a particular construction contract to interpre one of its provisions. I've been pouring through it since yesterday, cursing and yelling along the way. It is one of the worst contracts I have ever read. Its language is ambiguous, dense, and full of legalese, so a person who can ascertain its meaning should be eligible for a Nobel Prize. Ironically, it is a form contract presented in its industry as a blueprint for what a contract should look like.
The question that I have is why even draft such a contract? If the client's goal is to have an enforceable written instrucment, the drafting attorney failed miserably. The only way this contract is good is if the client's goal is to avoid its contractual obligation.
Which also brings up ethical questions: Does the lawyer drafting a contract have a duty to draft it in the way to make sure it is enforceable? And, more importantly, if the client wants it drafted in a way to make enforcement problematic, does a lawyer have an ethical duty not to follow that instruction? My answers would probably be "yes" to both questions, though I can see a fairly strong argument for the "no" camp.
Don't forget the canon of construction that any ambiguities in a contract are to be construed against the party drafting it. That argues strongly in favor of "ironcladness."
Posted by: KipEsquire | May 26, 2005 at 11:59