Should a Lawyer 'Sell' Legal Documents?

Posted: Nov 24, 2015 12:01 AM
Should a Lawyer 'Sell' Legal Documents?

"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 six figures in just two years, we are still just making ends meet.

"I was hoping to find a template agreement between $100 and $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."

Emails like this give me the willies sometimes. As the middle class in America is subject to increasing economic pressure, it becomes increasingly difficult for many individuals to afford basic legal, tax and other professional services for their small businesses. I empathize with these citizens' hardship and would like to help in any way I can.

It is no secret that lawyers rely on templates of legal documents when working with their clients. We pay a lot of money, often well into the thousands, for books containing these forms. I am the author of several of them.

In the course of my 35-year career, I have created thousands of documents that cover just about every type of contract a small business in the United States could possibly need. The idea of setting up a website for small business legal forms and retiring in the Caribbean has occurred to me several times, and is becoming more tempting as I slowly inch towards retirement age.

There is nothing illegal about selling legal forms. Websites for companies like US Legal Forms and Small Business Legal Forms offer many, for very reasonable prices. There is also no copyright on legal document templates; if you can find a good one online, by all means, take it and try to figure out how to tailor it to your particular 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 no such thing as a template or boilerplate legal form. I can honestly say that in my 35 years practicing law, I have never 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 and transaction is unique in some way, and changes to the template must be made for it to work in the particular situation my client is facing. For example, while virtually all forms of confidentiality agreements contain the same, basic provisions, the actual agreement will vary. This is dependent on considerations such as:

-- Whether one 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.

-- If any state laws or cases govern the enforceability of nondisclosure agreements.

-- The particular information the client wants protected.

-- Whether the business is technology driven or marketing based.

At last count, I have over 1,000 different confidentiality agreement forms in my master form file. In order to determine which form is right for this reader's situation, I would need to spend a considerable amount of time on the phone with him to learn the exact details of the transaction for which the contract is needed.

Another issue 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 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, but my preference is to sleep better at night 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.