united-states contract-law conflict-of-interest
Under what circumstances is a lawyer permitted to draft documents &quot;friendly&quot; to the other side?
<p>There are typically two parties on any contract, call them buyer and seller. Contracts can be drafted that are neutral, or they could be friendly to either the buyer or the seller.</p>

<p>I can see a case where one party says "I really want this deal;" I want you to draft a contract that protects my interests, but is friendly to the other side, to get them to sign. In this case, the lawyer would draft an "other-party" friendly contract.</p>

<p>But suppose the client says, "I want my rights protected, I want you to draft a "tough" (unfriendly) contract that they might walk away from, one that will separate the men from the boys." The lawyer protests and says something like, "While what you are proposing is legal, we need to go easy on these people; they're minorities." The lawyer then produces a "soft" contract and pushes the client to sign, but s/he later regrets this.</p>

<p>Does the lawyer have the right to do this? Or is this a potential conflict of interest?</p>

<p>A lawyer is obligated to protect his client's interests and to carry out his client's directions in these matters. Not doing so would violate multiple ethical rules applicable to lawyers. Some of the relevant provisions of the American Bar Association's <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html" rel="nofollow noreferrer">Model Rules of Professional Conduct</a> which are the template for every state's ethical rules (some with local variation) are:</p>

<p><strong>Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer</strong></p>

<blockquote>
  <p>a) Subject to paragraphs (c) and (d), <strong>a lawyer shall abide by a
  client's decisions concerning the objectives of representation and, as
  required by Rule 1.4, shall consult with the client as to the means by
  which they are to be pursued.</strong> A lawyer may take such action on
  behalf of the client as is impliedly authorized to carry out the
  representation. A lawyer shall abide by a client's decision whether to
  settle a matter. In a criminal case, the lawyer shall abide by the
  client's decision, after consultation with the lawyer, as to a plea to
  be entered, whether to waive jury trial and whether the client will
  testify.</p>
  
  <p>(b) A lawyer's representation of a client, including representation by
  appointment, does not constitute an endorsement of the client's
  political, economic, social or moral views or activities.</p>
  
  <p>(c) A lawyer may limit the scope of the representation if the
  limitation is reasonable under the circumstances and the client gives
  informed consent.</p>
  
  <p>(d) A lawyer shall not counsel a client to engage, or assist a client,
  in conduct that the lawyer knows is criminal or fraudulent, but a
  lawyer may discuss the legal consequences of any proposed course of
  conduct with a client and may counsel or assist a client to make a
  good faith effort to determine the validity, scope, meaning or
  application of the law.</p>
</blockquote>

<p><strong>Rule 1.7       Conflict of Interest: Current Clients</strong></p>

<blockquote>
  <p>(a) Except as provided in paragraph (b), a lawyer shall not represent
  a client if the representation involves a concurrent conflict of
  interest. A concurrent conflict of interest exists if:</p>
  
  <p>(1) the representation of one client will be directly adverse to
  another client; or</p>
  
  <p>(2) <strong>there is a significant risk that the representation of one or more
  clients will be materially limited by the lawyer's responsibilities to
  another client, a former client or a third person or by a personal
  interest of the lawyer.</strong></p>
  
  <p>(b) Notwithstanding the existence of a concurrent conflict of interest
  under paragraph (a), a lawyer may represent a client if:</p>
  
  <p>(1) the lawyer reasonably believes that the lawyer will be able to
  provide competent and diligent representation to each affected client;</p>
  
  <p>(2) the representation is not prohibited by law;</p>
  
  <p>(3) the representation does not involve the assertion of a claim by
  one client against another client represented by the lawyer in the
  same litigation or other proceeding before a tribunal; and</p>
  
  <p>(4) each affected client gives informed consent, confirmed in writing.</p>
</blockquote>

<p><strong>Rule 1.13     Organization as Client</strong></p>

<blockquote>
  <p>(a) A lawyer employed or retained by an organization represents the
  organization acting through its duly authorized constituents.</p>
  
  <p>(b) <strong>If a lawyer for an organization knows that an officer, employee or
  other person associated with the organization is engaged in action,
  intends to act or refuses to act in a matter related to the
  representation that is a violation of a legal obligation to the
  organization, or a violation of law that reasonably might be imputed
  to the organization, and that is likely to result in substantial
  injury to the organization, then the lawyer shall proceed as is
  reasonably necessary in the best interest of the organization.</strong> <strong>Unless
  the lawyer reasonably believes that it is not necessary in the best
  interest of the organization to do so, the lawyer shall refer the
  matter to higher authority in the organization, including, if
  warranted by the circumstances to the highest authority that can act
  on behalf of the organization as determined by applicable law.</strong></p>
  
  <p>(c) Except as provided in paragraph (d), if</p>
  
  <p>(1) despite the lawyer's efforts in accordance with paragraph (b) the
  highest authority that can act on behalf of the organization insists
  upon or fails to address in a timely and appropriate manner an action,
  or a refusal to act, that is clearly a violation of law, and</p>
  
  <p>(2) the lawyer reasonably believes that the violation is reasonably
  certain to result in substantial injury to the organization,</p>
  
  <p>then the lawyer may reveal information relating to the representation
  whether or not Rule 1.6 permits such disclosure, but only if and to
  the extent the lawyer reasonably believes necessary to prevent
  substantial injury to the organization.</p>
  
  <p>(d) Paragraph (c) shall not apply with respect to information relating
  to a lawyer's representation of an organization to investigate an
  alleged violation of law, or to defend the organization or an officer,
  employee or other constituent associated with the organization against
  a claim arising out of an alleged violation of law.</p>
  
  <p>(e) A lawyer who reasonably believes that he or she has been
  discharged because of the lawyer's actions taken pursuant to
  paragraphs (b) or (c), or who withdraws under circumstances that
  require or permit the lawyer to take action under either of those
  paragraphs, shall proceed as the lawyer reasonably believes necessary
  to assure that the organization's highest authority is informed of the
  lawyer's discharge or withdrawal.</p>
  
  <p>(f) In dealing with an organization's directors, officers, employees,
  members, shareholders or other constituents, a lawyer shall explain
  the identity of the client when the lawyer knows or reasonably should
  know that the organization's interests are adverse to those of the
  constituents with whom the lawyer is dealing.</p>
  
  <p>(g) A lawyer representing an organization may also represent any of
  its directors, officers, employees, members, shareholders or other
  constituents, subject to the provisions of Rule 1.7. If the
  organization's consent to the dual representation is required by Rule
  1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by
  the shareholders.</p>
</blockquote>

<p><strong>Rule 1.16     Declining or Terminating Representation</strong></p>

<blockquote>
  <p>(a) Except as stated in paragraph (c), a lawyer shall not represent a
  client or, where representation has commenced, shall withdraw from the
  representation of a client if:</p>
  
  <p>(1) the representation will result in violation of the rules of
  professional conduct or other law;</p>
  
  <p>(2) the lawyer's physical or mental condition materially impairs the
  lawyer's ability to represent the client; or</p>
  
  <p>(3) the lawyer is discharged.</p>
  
  <p>(b) Except as stated in paragraph (c), <strong>a lawyer may withdraw from
  representing a client if:</strong></p>
  
  <p>(1) <strong>withdrawal can be accomplished without material adverse effect on
  the interests of the client;</strong></p>
  
  <p>(2) the client persists in a course of action involving the lawyer's
  services that the lawyer reasonably believes is criminal or
  fraudulent;</p>
  
  <p>(3) the client has used the lawyer's services to perpetrate a crime or
  fraud;</p>
  
  <p>(4) <strong>the client insists upon taking action that the lawyer considers
  repugnant or with which the lawyer has a fundamental disagreement;</strong></p>
  
  <p>(5) the client fails substantially to fulfill an obligation to the
  lawyer regarding the lawyer's services and has been given reasonable
  warning that the lawyer will withdraw unless the obligation is
  fulfilled;</p>
  
  <p>(6) the representation will result in an unreasonable financial burden
  on the lawyer or has been rendered unreasonably difficult by the
  client; <strong>or</strong></p>
  
  <p>(7) <strong>other good cause for withdrawal exists.</strong></p>
  
  <p>(c) A lawyer must comply with applicable law requiring notice to or
  permission of a tribunal when terminating a representation. When
  ordered to do so by a tribunal, a lawyer shall continue representation
  notwithstanding good cause for terminating the representation.</p>
  
  <p>(d) Upon termination of representation, a lawyer shall take steps to
  the extent reasonably practicable to protect a client's interests,
  such as giving reasonable notice to the client, allowing time for
  employment of other counsel, surrendering papers and property to which
  the client is entitled and refunding any advance payment of fee or
  expense that has not been earned or incurred. The lawyer may retain
  papers relating to the client to the extent permitted by other law.</p>
</blockquote>

<p><strong>Rule 2.1       Advisor</strong></p>

<blockquote>
  <p>In representing a client, <strong>a lawyer shall exercise independent
  professional judgment and render candid advice. In rendering advice, a
  lawyer may refer not only to law but to other considerations such as
  moral, economic, social and political factors, that may be relevant to
  the client's situation.</strong></p>
</blockquote>

<p>A lawyer is certainly within his rights, and indeed his duty, to inform a client that his proposed course of action is unwise, and can withdraw from representing the client. But, in general, in a transactional matter, unless the proposed conduct constitutes a crime or fraud, the lawyer may not defy a client's directions.</p>

<p>Of course, while there are general rules in the law, there are also almost always fact specific exceptions to those rules.</p>

<p>For example, while ordinarily, writing a tough contract when dealing with a minority counterparty would not be a crime or fraud. But, if an easy contract was used with all non-minority counterparties, but not with minority counterparties and the client's instruction was intended to discriminate on the basis of race, it might very well be unlawful or even a crime, in some circumstances to do so, which would alter the lawyer's obligations. </p>

<p>Even then, however, a lawyer would almost never be authorized to affirmatively draft a contract contrary to the client's instructions as opposed with declining to do that work at all.</p>
