I remember being unimpressed when I read Herman Melville’s Bartleby, the Scrivener as a high school sophomore. I didn’t particularly care whether Bartleby was supposed to be the personification of free will or whether the book represented Melville’s critique of lawyers. As far as I was concerned, it was a boring story of a lazy guy who “would prefer not to” do any work (not unlike my teenage self). Even the 2001 movie adaptation (which I don’t think anyone actually saw) is annoying.
That said, I do find this respected commenter’s take on the scrivener’s story to be quite compelling:
A New Jersey appellate court recently added its own view of a scrivener’s role in a malpractice case against the Fox Rothschild law firm. The central issue was whether the lawyer was negligent for failing to advise his client on the impact of an unambiguous contract provision. The lawyer contended that his role was that of a “scrivener” and that he was responsible only to ensure that the agreement reflected the terms negotiated by his sophisticated client. The appellate court reversed the grant of summary judgment in favor of the lawyer, finding that the lawyer owed a duty of care to his client — scrivener or not — and that it was up to a jury to decide whether that duty was breached. The court cited a number of factual issues raised by the parties and noted, in particular, the absence of an engagement letter or other writing delineating the lawyer’s role.
Clients sometimes come to lawyers already having negotiated deal terms and ask that the lawyers just paper the deal. Litigators likewise are sometimes asked to play a limited role or defer to co-counsel. That’s all well and good, but the Fox Rothschild case teaches us to be clear at the outset, in writing, as to the limits of your role. So if your role as a lawyer is circumscribed, then scriven that confirmatory email or letter to the client so that everyone is clear on the limited scope of the representation. I think I speak for everyone, scriveners included, when I state that that I would prefer not to face a legal malpractice claim for a role that I did not undertake.