Drafting Contracts

Lawyer-Client Relationship in Contract Law: Roles and Responsibilities

by Jay Chauhan*

The relationship between a solicitor and a client in Canada and Attorney and client in US in the realm of contract law is both pivotal and complex which affects our daily life and business transactions we do. Drafting and execution of contracts are crucial in carrying out our mission in daily life and many situations we go through in modern society which is complex and requires good understanding to ensure success. This relationship is fundamentally based on a clear division of roles: the solicitor or lawyer or advocate or attorney advises, and the client provides the necessary instructions based on what they seek to achieve. Client should retain his position as the final decision maker after getting advice but often the lawyers take over the decision making.

Role of the Solicitor

A solicitor's primary role is to offer legal advice. They are tasked with interpreting the law and providing insights that are legally sound and tactically and strategically astute. Lawyers are often viewed as knowledgeable but authoritative on legal matters, which can lead them to expect clients to adhere strictly to their advice. However, it is crucial to understand that while solicitors can suggest pathways and highlight potential legal implications, the ultimate decision rests with the client. The solicitor should facilitate the client's decision-making process by providing expert legal advice without overshadowing the client’s autonomy. Ethical lawyers should also recognize the conflict in their minds between self interest in earning fees in private enterprise legal system and interest of the client which should remain paramount. Each lawyer consciously or subconsciously weighs in his or her mind the balance between the two conflicting interests with the Law Society governing conduct of lawyers with the assumption that client’s interest should be preferred.

Role of the Client

The client's role, on the other hand, is to provide clear and comprehensive instructions to the lawyer, and explain the details in which the contract is being drafted. This includes explaining the facts of the matter and the desired outcomes in plain language, especially when it pertains to the specifics of a contract. Clients hold the details and the vision of what they want to achieve through the contract, and they must communicate this effectively to their lawyer. This is particularly important in specialized contracts—like those in construction, employment, leases, and mortgages and in professional and artistic endeavors—where commercial language may become technical. It is the client’s responsibility to articulate what they want in broader terms, allowing the lawyer to translate these terms into effective legal language. There are usually two parties to the agreement and in common law system one may draft the agreement and other lawyer acting for the other party may review that agreement from the other party’s point of view. In such cases it is inappropriate for the client to simply say “can you review the agreement” without giving background of the matter.

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Drafting Process

The drafting of a contract is typically an iterative process. The initial draft, created by the lawyer based on the client's instructions, often undergoes several revisions where there is a new event or experience parties have not dealt with. Where there is historical experience gathered in contracts such as leases, mortgages etc. there is wording that can be copied from previously made agreements. This back-and-forth continues until the client approves the wording, ensuring that it aligns with their needs and objectives. Using the draft to go back and forth is a way of communications also between lawyer and client. Even after the client's approval, the draft must also be accepted by the opposing party’s lawyer, who will review the language and make necessary amendments to clarify issues or address potential disputes. In common law jurisdictions it is important not to let both parties think that one lawyer is acting for both parties. Contracts are not just agreement made to be enforceable in court but also a way of clarifying the intent of both parties which makes it possible in modern life to have complex arrangements defined and clarified in the mind of both parties. It is not usually the role of the lawyer to see to the execution and implementation of the agreement but it is helpful for the lawyer to give thought to the problems parties might go through in implementation and where there is disagreement a resolution mechanism can be set up such as mediation or arbitration which can be cheaper and more expeditious than court hearing.

Understanding and Negotiating Terms

Negotiations during the contract drafting process will not only help clarify the responsibilities and expectations of each party but also establish what will happen under various future scenarios. An example is delivery of goods and in such a case where goods failed to be delivered on time as a result of a third party delivering what to do. These resolution mechanism clauses are essential for preventing and resolving disputes that may arise during the lifespan of the contract. It is increasing becoming important to have arrangement to revise the agreements as the experience of parties grows and third parties helping to complete contract need to be addressed to make collaborative production line established for delivery of goods or services.

Legal Understandability

Finally, if a contract dispute escalates to court, the language within the agreement must be comprehensible to those outside of the specialized field, including the judge. This underscores the importance of drafting contracts that are clear and accessible, rather than mired in technical jargon. The clarity of the contract can significantly impact its enforceability and the fairness of the proceedings should legal interpretation become necessary.

In conclusion, the lawyer-client relationship in contract law is characterized by a balance of expertise and clear communication. While lawyers provide the legal framework necessary for drafting enforceable contracts, clients must articulate their needs and expectations in terms that can be legally operationalized. This collaborative effort ensures that contracts are not only legally sound but also aligned with the practical business interests of the parties involved.

*Jay Chauhan is a lawyer in Ontario, Canada, UK and India and is a retired Deputy Judge from Ontario. www.jaychauhan.com