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Volume 46, Issue No. 1 (Fall, 2014)

It is important to recognize some of the traps and pitfalls that await even an experienced transactional attorney so these problems can be resolved quickly or avoided if possible. This article describes why and how drafting contracts differs from drafting other legal documents, presents a few of the more common ethical traps an attorney drafting contracts might encounter, and provides practical tips designed to help attorneys who draft, review, and change contracts minimize the impact of or avoid making mistakes altogether.

The recent cases in the article highlight that the possible consequences of an agreement to maintain the confidentiality of information can be far reaching and are evolving. These cases also teach that, in addition to the importance of having contractual provisions sufficient to accomplish the intended objectives, director awareness of the effects of provisions in NDAs their companies enter into can have fiduciary duty implications. Thus, the lessons of these recent cases should be considered by counsel and discussed with the client before an NDA is entered into for a significant transaction.