You've seen them. The settlement agreements with "Approved as to form and content" at the end of document, with a place for the attorneys to sign right along with the parties. I know a lawyer that has, for many years, refused to sign off on such language. His reason? He's not a party to the agreement; his client is. It turns out that his instincts were pretty accurate. In what it believes to be a case of first impression, the Court of Appeal (Second Appellate District, Division Four), in Freedman v. Brutzkus (March 11, 2010), examined at least some of the legal import of that language:
The signature block on a contract bears an attorney signature under the legend “approved as to form and content.” Does that signature amount to an actionable representation to an opposing party‟s attorney? We conclude that it does not.
Slip op., at 2. The Court noted the lack of authority directly construing the import of this recital:
Apart from the signature approving the agreement “as to form and content,” Freedman does not allege, nor does the record show, that Brutzkus made any representation as to the agreement‟s validity, or affirmed any representation of his clients. We find little authority in California or elsewhere addressing the meaning of this recital. (See, e.g., In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1181 [declining to find an attorney‟s approval “as to form” a condition precedent to enforceability of an agreement]; Ahrenberg Mech. Contractor v. Howlett (Mich. 1996) 545 N.W.2d 4, 5-6, citing Kirn v. Ioor (Mich. 1934) 253 N.W. 318 [finding approval as to form and content of a court order insufficient to establish a consent judgment]; First American Title Ins. Co. v. Adams (Tex.Ct.App. 1992) 829 S.W.2d 356, 364 [determining that an attorney‟s approval as to form and substance does not establish a consent judgment or relinquish a party‟s right to appeal]; CIC Prop. Owners v. Marsh USA, Inc. (5th Cir. 2006) 460 F.3d 670, 672-673 [agreement stating it was “„reviewed by counsel for parties and approved as to form and content‟” indicates that parties were separately advised by counsel].)
Slip op., at 5. Having no direct authority to answer the question raised on appeal, the Court did the only thing it could do, apply common sense:
We conclude that the only reasonable meaning to be given to a recital that counsel approves the agreement as to form and content, is that the attorney, in so stating, asserts that he or she is the attorney for his or her particular party, and that the document is in the proper form and embodies the deal that was made between the parties.
Slip op., at 5-6.
This isn't a complex litigation issue, or a class action issue. It's just a fine example of all those mindless acts of habit that attorneys insist upon without a good reason.