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Suppose that I hire a lawyer to draft a formal contract with another party. (I, the lawyer, and the other party all reside within the U.S.) The terms that I would like in the contract are well documented in written communication between me and the lawyer, and the lawyer agrees to put these terms into the contact. The lawyer then drafts the contract, which is by nature long and complex (think hundreds of pages of dense legalese, such as in a venture capital funding deal or complex real estate transaction). I do my best to read through the contract and discuss it with the lawyer, but ultimately must trust that the lawyer has done as we agreed. I sign the contract and the other party does too.

Later, it turns out that some of my terms were not included or were misrepresented in the contract. Do I have any recourse for invalidating all or part of the contract? Would a successful suit against the lawyer for malpractice or negligence make any difference? What is best practice for avoiding a flawed contract like this in the first place? (For example, is it typical to hire a second lawyer to check the work of the first?)

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  • You will need very specific advice on this from an attorney. I think in general, signing a contract that you wrote poorly or that you didn't understand will not be a defense in invalidating the contract. You might be able to get relief via malpractice against the attorney if they just wrote it wrong. You should also update for your location.
    – Tiger Guy
    Commented Mar 30, 2020 at 19:20
  • @Tiger I've updated the question to include my location. Thanks.
    – SapereAude
    Commented Mar 30, 2020 at 19:52
  • To clarify: the lawyer is unambiguously your lawyer? And in no way or form represents the other party? The second lawyer is reasonable enough. "Trust but verify". In the end, it's your signature on the contract, not your lawyers.
    – MSalters
    Commented Mar 30, 2020 at 20:46
  • @MSalters Yes, correct, the lawyer is my lawyer.
    – SapereAude
    Commented Mar 30, 2020 at 22:13

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Whether or not a lawsuit against the attorney is at all practical is a matter that only your other attorney can advise you on (after carefully studying the facts). The primary question is whether the attorney was negligent (there is also the question of whether there was significant damage resulting from the error).

It is possible that the contract can be reformed if there is a mutual mistake, where the parties agree on the terms, but the writing does not match that agreement. Or, if one party knew that some term in the contract was a mistake, the contract could be canceled. This article discusses some basics of mistakes in contracts.

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Do I have any recourse for invalidating all or part of the contract?

No.

There is a presumption in contract law that when a contract is reduced to writing then what that writing says is what the parties agreed. Also, if you signed it, then you are legally stating: I read it, I understand it and I agree to it - don't sign things you don't understand. If your lawyer has produced something you don't understand then have them redraft it until you do.

Would a successful suit against the lawyer for malpractice or negligence make any difference?

No.

A suit against you lawyer may get you damages from your lawyer but it will not affect the rights of third-parties.

What is best practice for avoiding flawed contracts like this in the first place?

Read and understand the contract. Educate yourself enough in the law so that you can do this. Your lawyer is there to give you professional advice; you are there to make your own decisions.

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  • (A fantastic answer as well. Would accept both if I could.)
    – SapereAude
    Commented Mar 31, 2020 at 15:17

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