At one stage of my career I did a great deal of work for a franchisor of bakeries. If the truth be known, my client was not exceptionally good at the franchisee selection process. The franchisee qualification process consisted of providing evidence of a bank account and a heartbeat.
One of its less than stellar franchisees was operating its bakery poorly from a shopping centre owned by a major commercial landlord. The lease came up for renewal and the landlord advised my client that the lease would not be renewed if that particular franchisee was going to be operating the business.
The President of the landlord met with the President of the franchisor and the two of them came to what in simpler times we used to quaintly call a “gentleman’s agreement.” The landlord agreed to renew the lease. The franchisor agreed to get rid of the franchisee as soon as possible.
And that is how I came to be reviewing the lease renewal agreement prepared by the landlord’s lawyer, who practiced at a well-regarded firm. This particular lawyer had several years of experience practicing only commercial leasing law, exclusively for landlords.
The lease renewal agreement was very well drafted in every way but one. It included a full page of covenants pursuant to which my client was to promise to make every possible effort to terminate the franchise agreement and would suffer grave consequences if it did not. The wording left nothing to doubt. One way or the other, my client was required get rid of the franchisee, whether or not the franchisee corrected any default in the performance of its franchise agreement or sublease.
So, I phoned opposing counsel (because back in the day that is what you did) and I objected to this provision being included in the agreement. He responded that the draft correctly reflected the agreement of the Presidents of our respective clients and that the provision in question had to stay in the agreement.
I agreed with him that the document accurately reflected what was agreed upon. Then, I explained to him that what he was doing was documenting in writing what could be looked at as a conspiracy to induce breach of contract, resulting in potential liability for both of our clients. Suddenly the light went on for him and he murmured something about getting instructions from his client.
(If I had thought about it some more, I might also have begun to ruminate about what can happen to the lawyers who participate in a conspiracy, whether or not it ends up being documented in writing.)
The next draft which the landlord’s lawyer sent was silent about the termination of the franchise agreement.
The moral of the story: good lawyers are not scribes, simply striving to give effect to every thought that their clients come up with. It is all about the big picture. Which, coincidentally, they do not teach you in law school.