“I am looking for an attorney who could provide my business with a ‘master’ form of client agreement. We understand that your services are not cheap but would like to know how much you would charge for this kind of document. We were hoping you might offer a template agreement for this kind of arrangement. Unlike some people in this business who say that they started with a very small amount of money and are making 6 figures in just two years, we are still just making ends meet.
I was hoping to find a template agreement for between $100 to $200, my thought being that once ‘constructed’ such an agreement could be sold by the creating attorney multiple times and that if properly priced the attorney who wrote such an agreement could end up making more by making it more affordable.
Hopefully you will have something that fits into our budget.”
E-mails like this give me the willies sometimes. As the middle class in America is subjected to ever increasing economic pressure, it is harder and harder for many people to afford even basic legal, tax and other professional services for their small businesses. And before we go any further, let me say that I really, really feel these people’s pains, and would like to help them in any way I can.
It is no secret that lawyers rely on template legal documents when working with their clients. We pay lots of money (often well into the thousands) for books containing these forms, and I am the author of several of them – for lawyers only, of course.
In the course of my 35-year career, I have created literally thousands of documents for just about every sort of contract a small business in the United States could possibly want. The idea of setting up a “small business legal forms” website and retiring to the Caribbean has occurred to me at least several times, and is getting ever more tempting as I slowly inch towards retirement age.
There is nothing illegal about selling legal forms per se – websites like www.uslegalforms.com and www.smallbusinesslegalforms.com offer tons of them for very reasonable prices. There is also no copyright on template legal documents, so if you can find a good one online, by all means grab it and try to figure out how to “tailor” it to your particular deal, transaction or situation.
But, as Shakespeare would say, “ay, there’s the rub.”
One of the dirtiest secrets of my profession is that there is really no such thing as a “template” or “boilerplate” legal form. I can honestly say that in my 35 years practicing law, I have never – not even once – taken one of my “template” forms, dusted it off, filled in the blanks, and sent it to a client as a finished product. Every business, every transaction, is unique in some ways, and changes to the “template” must be made to make it work for the particular situation my client is facing. For example, while virtually all forms of confidentiality agreement (a/k/a “nondisclosures” or “NDAs”) contain basically the same provisions, the actual agreement will vary depending on such considerations as:
- whether only one party, or both parties, are being asked to keep the other party’s information confidential;
- whether the tone of the agreement should be formal “legalese” or informal “plain English”;
- any state laws or cases governing the enforceability of NDAs;
- the particular information the client wants protected; and
- whether the business is technology-driven or marketing-driven.
At last count, I have over 1,000 (slightly) different forms of confidentiality agreement in my “master” form file (which I probably will donate to the Smithsonian when I die). In order to determine which form is right for this reader’s situation, I would need to spend a considerable amount of phone time with him to learn the exact details of the transaction for which the contract form is needed.
Another issue here has to do with the extremely complex rules of conduct we lawyers must obey. If I sell this reader one of my forms for him to tailor, and during the back-and-forth of negotiation he leaves out an essential provision that would protect him, or adds a provision that is poorly drafted, and suffers as a result, do I have any malpractice liability to him? Have I created a lawyer-client relationship? Will there be an issue as to whether the defective language came from my form or his “edit”? Am I making any sort of implied warranty that the form is suitable for his particular situation? What sort of evidence will I need to keep around showing exactly what I sent him, and when?
For these reasons I have typically refused to sell my forms to people who aren’t qualified to use them. I may be missing out on a huge business opportunity here, but my preference is to sleep better at nights knowing I am not helping nonlawyers commit legal malpractice, engage in the unauthorized practice of law, or put their businesses at risk because they haven’t had 35 years of experience drafting legal contracts.
Cliff Ennico (firstname.lastname@example.org) is a syndicated columnist, author and host of the PBS television series ‘Money Hunt’. This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com. COPYRIGHT 2015 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE, INC.