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Full-Text Articles in Law
Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn
Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn
Faculty Publications
Clients will often use a retainer to secure an attorney’s representation. But clients in economic distress may have creditors that are eager to access the client’s funds in the attorney’s hands. Attorneys, clients, courts, and regulators have struggled to understand who has the best claim to such retainer funds. In this Article, we attempt to untangle the most common areas of confusion. We conclude that Article 9 of the Uniform Commercial Code (UCC) offers strong protection for an attorney’s interest in client retainers through security interests, even though some courts have misapplied the UCC in this context. Further, we recommend …
Judicial Incorporation Of Trade Usages: A Functional Solution To The Opportunism Problem, Juliet P. Kostritsky
Judicial Incorporation Of Trade Usages: A Functional Solution To The Opportunism Problem, Juliet P. Kostritsky
Faculty Publications
Article 2 of the UCC directed courts to look to business norms as a primary means of interpreting contracts. Recently the new formalists have attacked this strategy of norm incorporation as a misguided one that will lead inevitably to significant error costs. Accordingly, they have embraced plain meaning as the preferred interpretive strategy. This article argues that the strategy of rejecting trade usages unless they are part of the express contract is too rigid. The rejection is premised on an overly narrow cost/benefit analysis that fails to account for the functional role that such usages may play in curbing opportunistic …