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University of Miami Business Law Review

Ryan Hasting

Document Type

Comment

Abstract

Smart contracts are increasingly popular in business and law. Smart contracts are also becoming increasingly complex. Advances in technology allow smart contracts to handle far more intricate transactions than the traditional—and simple— vending machine example. With increased complexity comes increased responsibility. When parties rely on an attorney to review or draft a smart contract, that attorney must understand what he or she is reading or writing. Smart contracts, however, are not written in a language most attorneys can understand, let alone write. While a general description of the contract may be translated into plain English, the contract itself is written in code. If an attorney cannot read the contract itself—and can only read a general description of the contract—can the attorney claim in good faith that he or she possesses the competence necessary to understand the terms of the contract? If the attorney cannot understand the contract, he or she can be held liable for malpractice if the contract leads to results contrary to what the attorney claimed could or would occur. The implementation of smart contracts is likely to give rise to specialized requirements for attorneys drafting and advising on smart contracts. Special requirements are not unheard of in the legal community. For example, to become a patent attorney, one must take and pass the Patent Bar Examination and fulfill other requirements, such as obtaining a bachelor’s degree in specified fields of science or engineering. Similar requirements—either in the form of a smart contract certification or exam—should be developed not only as a measure of attorney competence, but also as a protection against malpractice suits brought forth by clients.

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