40 Loyola of Los Angeles Law Review 487 (2006) Originally published in the Loyola of Los Angeles Law Review at 40 Loy. L. A. L. Rev. 487 (2006)
This Symposium focuses on the extent to which attorneys can use agreed terms to supplant or “bump” the provisions of the Uniform Commercial Code (UCC). The articles in this Symposium demonstrate that the degree to which attorneys customarily “contract out” varies considerably from UCC article to article. In reality, though, the issues surrounding contracting out of UCC provisions are not limited to the UCC, statutes, or other codified rules. Most “repeat players” in the market periodically ask their lawyers to redraft their standard-form contracts in ways that increasingly favor the drafter. Some of these lawyers may intentionally draft clauses that are *488 already invalid, are about to be invalid, or pose ethical issues. Even though the clauses may be marginally valid, their efforts may be with or without their clients' urgings. Other lawyers are not deliberate in their drafting efforts that “push the line” or include invalid clauses, but do so “because everyone else does it” or because their legal research is deficient. These invalid and iffy clauses raise ethical issues, and a few of them violate the rules of professional responsibility. The core of this Article focuses on violations of the Model Rules of Professional Conduct (MRPC or Model Rules), with small excursions into the Restatement (Third) of the Law Governing Lawyers, as well as ethical, but uncodified, considerations. Admittedly, the literature on professional responsibility and ethics of the legal profession is thin on “transactional” issues; that is, those that lawyers confront when they put together transactional relationships. As such, many of the conclusions in this Article are based on inferences and analogies from the existing (but thin) literature that applies to transactional ethics. My primary expertise is in commercial law rather than in legal ethics and professional responsibility. This Article is written from the former perspective, as an invitation to those in the latter field to do more work on the subject of “drafting on the edge.”
Kunz, Christina L., "The Ethics of Invalid and 'Iffy' Contract Clauses, in Symposium: Contracting Out of the Uniform Commercial Code" (2006). Faculty Scholarship. 126.