BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 2015-2
(Inquiry No. 2015-7 )
Use of altered “form” or boilerplate documents, and the disclosures required with their use.
Real Estate practitioner, who routinely uses extensive “form” boilerplate documents as part of practice may not insert different language in place of form text on documentation without running afoul of attorneys duty to act honestly.
Inserting language onto a form with pre-printed text in a manner where the inserted language may be mistaken for pre-printed form language is an ethical violation insofar as it violates attorneys’ duties to act honestly.
Rule 8.4 (c)
In the course of a residential real estate transaction the practitioner Inquirer uses form documents (upon which names and other pertinent information is filled into blank spaces), and non-form documents and transmits these to opposing counsel for opposing counsel’s review and comments. In the course of such conduct, the Inquirer has asked if he may transfer out the pre-printed language within the “standard,” boilerplate, or “form” document and exchange in the Inquirer’s own terms.
Whether there is an ethical prohibition to change a preprinted form of a real estate contract and send it to another attorney without drawing ones attention to it?
The Inquirer is a real estate practitioner who uses form documents (e.g., contract of sale) along with documents custom to each transaction. Under such circumstances, attorneys have a duty to act diligently on behalf of their clients, and to read all contractual provisions. This affirmative duty on the party receiving “form” documents to be diligent in reviwewing documents received does nor, however, mean that the transmitting attorney may insert language into “form” documents surreptitiously.
Long gone are the days of type setting and language set in proverbial stone. Rather, the nature and length of such “form” documents, and the high quality of technological / computerized ability to nearly indiscernibly inert differing – and often favorable to one party at the disadvantage of the other – language into “standard” documents makes such alterations rather rudimentary. Hence, it would be impossible (or nearly so) to discern the change in language unless one were to review the document at issue word-for-word and compare it to the “standard” “form” document so often utilized by such practitioners.
Accordingly, any such change (and the absence of notice of such change) in some form would open the door for some unscrupulous practitioners to gain an unwarranted advantage by burying a material change in prolific boilerplate language. This would, in the Committee’s opinion open the door to a “war of the forms” wherein each practitioner would race to insert more and more material, yet lesser noticeable alterations into so-called boilerplate “forms.”
This kind of guerilla, “Gotcha” legal practice runs afoul of attorneys’ fundamental duties, pursuant to Rule 8.4(c) which prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” The consequences for the profession, as well as for our clients, could not have it any other way: rewarding abilities to furtively insert language into contracts, further eroding the concepts of equity and “meeting of the minds” and rewarding stealthy boilerplate landmines.
This is not to say that every alteration of “standard” contracts is unethical. To the contrary, such forms are often altered, with the acknowledgements of all parties. Moreoever, if the alteration to the boilerplate is immaterial, negligent or merely bad form then, there may be other problems (such as lack of attorney competence), but not a violation of Rule 8.4(c).
Finally, if the changes are noticeable or if the language insertion is not part of “form,” boilerplate or “standard” documentation, or is otherwise obvious, there is no duty to affirmatively point this out to opposing counsel. The essential principle is that attorneys conduct themselves honestly. Not necessarily with complete transparency, but honestly.
Attorneys may not alter boilerplate “form” language in a non-obvious manner.
Approved by the full Committee on November 2015.