As many readers will know, “boilerplate” is the term that lawyers, accountants and businesspeople use to identify the set of standard provisions that are included in the final section of most contracts that involve significant financial or personal stakes. For example, Section 28 of the form I use in drafting operating agreements for my LLC clients who are forming multi- member LLCs includes no fewer than 20 such provisions, all of which address important general issues of contract law.

For example, these include provisions entitled “Entire Agreement,” “Governing Law,” “Effect of Captions,” and, in LLC formations in which I’m representing two or more LLC members simultaneously, “Joint Representation by Attorney.”

In my four decades of legal practice, I’ve run into more than a few clients who have expressed annoyance at my inclusion of extensive boilerplate provisions in contracts I’ve drafted for them. They’ve questioned whether these provisions are really necessary, and they’ve even suggested that they are just another lawyer boondoggle. I’ll call these clients “boilerplate haters.”

I cherish all of my clients, including even boilerplate haters. However, I’m convinced that with regard to boilerplate, my boilerplate hater clients are dead wrong. In all significant contracts, comprehensive boilerplate provisions are indispensable. But it’s also true that in many contracts, standard boilerplate provisions need to be altered to achieve client goals, and any good contract lawyer must know when and how to make these alterations.

For example, the most important boilerplate provision in most contracts is the standard provision providing that the parties to the relevant contract may amend the contract only if the amendment is signed by all of them. In 90% of contract deals, this standard provision makes sense. However, in 10 percent of them, it needs to be changed. To illustrate this point in the case of LLC operating agreements:

– Assume that AB, LLC has two members—individual A, who will actually run the LLC’s business, and individual B, A’s husband, whom A wants to be a member only because her lawyer (me) has advised her that the statutory asset protections available to the members of two-member LLCs are generally stronger than those available to the members of single-member LLCs.

– In this case, AB’s operating agreement should probably provide that, upon due notice to B, A may unilaterally amend any provision of the contract except provisions affecting B’s fundamental contract rights (which, of course, should be specified in the altered amendment provision).

As you may have guessed, I’m obsessed with the importance of boilerplate provisions in contract practice Thus, be warned: From time to time I plan to discuss in other columns the issue of when and how standard boilerplate provisions besides the one discussed above should be altered. If you’re a boilerplate hater, you can just ignore these columns. But your doing so might someday cause you significant legal harm.

John Cunningham is a lawyer licensed to practice law in New Hampshire and Massachusetts. He is of counsel to the law firm of McLane Middleton, P.A. Contact him at 856-7172 or lawjmc@comcast.net. His website is llc199a.com. For access to all of his Law in the Marketplace columns, visit concordmonitor.com.

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