B. Canadian Cases on Legal Research Malpractice

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 322-326

Page 322

As a general rule, lawyers are required to bring reasonable care, skill, and knowledge to the performance of the professional services they have undertaken to perform.¹Rule 2 of Chapter II (Competence and Quality of Service) of the Canadian Bar Association Code of Professional Conduct, for example, admonishes the lawyer to "serve the client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which lawyers would expect of a competent lawyer in a like situation."²From this general standard of care, Canadian courts have discussed a specific standard of care required for conducting legal research. In Central & Eastern Trust Co. v. Rafuse, for example, at issue was whether the lawyers were negligent in failing to ensure that their clients’ mortgage security constituted a valid charge in a situation where the mortgage was later held to be void under Nova Scotia corporate legislation. In holding that the liability of lawyers could arise in both tort and contract for negligently performing services for which they were retained, the Court went further to hold that the lawyers in that particular case were negligent for failing to have ascertained the existence of the relevant corporate legislation that would have affected the enforceability of the mortgage. In so holding, the Supreme Court of Canada applied both American and British law in suggesting that a lawyer, to avoid being negligent, may have a duty to adequately research the law in order to properly advise a client:

Page 323

The requirement of professional competence that was particularly involved in this case was reasonable knowledge of the applicable or relevant law. A solicitor is not required to know all the law applicable to the performance of a particular legal service, in the sense that he must carry it around with him as part of his "working knowledge," without the need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points. The duty in respect of knowledge is stated in 7 Am. Jur. 2d, "Attorneys at Law" ¶200, in a passage that was quoted by Jones J.A. in the Appeal Division, as follows [(at pp. 269-70): pp. 269, 147 D.L.R.]: "An attorney is expected to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques." See Charlesworth and Percy on Negligence (7th ed., 1983), pp. 577-78 to similar effect, where it is said: "Although a solicitor is not bound to know the contents of every statute of the realm, there are some statutes, about which it is his duty to know. The test for deciding what he ought to know is to...