X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

It is normal for clients to make representations in contracts, in agreements and in discovery in litigation. These representations can find their way into settlement agreements, agreements for the purchase and sale of residential and commercial properties, answers to interrogatories, and guaranties. The representations might occur in numerous ways, including those in binding agreements. However, the act of drafting an agreement for a client does not make the attorney responsible for the accuracy of the statements placed on paper. The attorney puts into writing the representations that the parties to the agreement intend to make to each other. This article will examine these situations and explain why attorneys do not have liability for their clients’ representations in contracts, agreements and throughout litigation.

With every aspect of litigation, attorneys represent clients who may have different degrees of business and legal acumen. Some clients have never faced litigation before, and completely defer to the advice of counsel regarding strategy, while other clients, especially in complex commercial litigation or professional malpractice cases, have significant experience in the field. In either situation, clients make certain representations, to both their attorney and their adversary that will support their position in a case or in a contract. These representations might include the credit worthiness of the client in connection with the sale of a property, representations made in the process of settling a case, or representations made in prenuptial agreements. However, attorneys, when drafting documents, are not necessarily liable for representations made by the client. As Judge Chesler noted in Wiebel v. Morris, Downing & Sherred, 2009 U.S. Dist. 46088 LEXIS (D.N.J. June 2, 2009), aff’d, (3rd Cir. June 10, 2010):

[T]o find otherwise would create an entirely new category of liability for the legal profession: it would impose on an attorney a duty of care with regard to all content in the agreements they draft, and attorneys would effectively become guarantors of every representation when they memorialize agreements.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.