Good Question: When is it Appropriate to Use Forms I’ve Found on the Internet?
On March 31, 2015
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We get asked this question all the time. After all, we live at a time when the greatest amount of information ever known to humanity is just a Google search away. Many internet sites offer legal forms for free or at very low cost. If you need a simple form, isn’t an attorney going to charge you significantly more for the same thing?
Before answering this question, I want to offer some refreshing news: we’re not defensive about the use of generic forms, and we have plenty of clients who have brought us forms with which they are already comfortable. To answer this question, however, let’s first delve into the background of why this question is so often asked.
Every day, we are told that new technologies should disrupt older models of doing business, therefore reducing the price of the goods and services we consume. This idea makes sense, but it has its limits. We’ve come to expect so many things for free, but we run the risk of forgetting another maxim: we get what we pay for.
Ever since we gained the ability to save forms on magnetic medium, attorneys have been able to re-use forms they have previously created in order to speed up document creation. The companies that operate legal document sites on the internet have taken this one step further and made their forms available to consumers. As lawyers, we also have access to dozens of other sites that promise to provide us low-cost forms specifically created for lawyers in drafting agreements for their clients.
The availability of these forms should reduce drafting time. But if forms are so readily accessible, is there a downside to using them?
The downside comes from the fact that a legal form is the end product of a process. It was either created with a generic client in mind or, in the case of forms found in Google searches, it was the result of lengthy negotiations that resulted in a very specific agreement. Without the guidance of the attorney who created the form, or one who has been trained to understand its contents, the context is missing.
We know that context is everything: What will the words of a particular provision be interpreted to mean, and how does that provision impact your particular situation? Was the form you found favoring your side of the transaction, the other side, or neither? Which provisions should be taken out, and which are missing? Which terms were the result of specific negotiation that turned out negatively affecting one or more of the parties? Does the governing law stated in the contract you found affect the enforceability of a key provision, and would it matter if the governing law provision was simply changed to another state?
Any one of these terms can significantly impact the outcome of a particular transaction. If you doubt that, I’d invite you to sit in on one of the many trials where the entire case turned on just a few words in the agreement.
Our fear, of course, is that attorneys are simply recycling the same forms and charging for them as if they were created ex nihilo from a blank page and a blinking cursor. Certainly, this fear is reasonable. Many of my colleagues have for years done just this, championing the very “systemization” of their office that has allowed them to sell the same document over and over for the price of its original creation. Online document services will disrupt this particular model. It has always been ethically questionable, but in an age of free and low-cost forms, it becomes downright unsustainable.
We take a different approach. We welcome clients who want to utilize forms which they’ve located on their own, whether from other similar companies in the industry, or even those found online. Often, it tells us something about the client’s preferences for the way the form is structured or the particular tone or length of the agreement. So our work is built on top of the form, rather than charging for merely creating what the client already possesses. There are times, of course, when we will honestly tell a client that the form they have brought to us is the wrong type, or that it is inadequate to protect them. But having been supplied with a form by our client, we bear the burden of demonstrating the benefits of a better form.
The value of our services should be in listening to the client and tailoring a form for their use — whether that form is one we have created or one which the client has identified. When drafting an agreement for a client with whom we don’t have an ongoing relationship, we need to hear about their business, learn about how the form will be used, listen to past issues that have arisen, and discuss the client’s tolerance for risk. We have hundreds — if not thousands — of forms in our archives, but each agreement ends up uniquely tailored to a client’s needs.