C. American Cases on Legal Research Malpractice

Author:Ted Tjaden
Profession:National Director of Knowledge Management McMillan LLP

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American cases dealing with legal research malpractice raise similar issues as the foregoing Canadian cases despite the fact that none of these American cases appear to have been considered or applied by any Canadian court. American courts have regularly held that a lawyer is under a duty to her client to conduct adequate legal research in order to fully advise the client of the client’s rights or risk being held liable in damages for research malpractice.11

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In the oft-cited Smith v. Lewis, for example, the defendant lawyer was held liable in negligence to his client for failing to research and properly advise his client regarding the likelihood of the client’s pension being "community property":

In any event, as indicated above, had defendant conducted minimal research into either hornbook or case law, he would have discovered with modest effort that General Smith’s state retirement benefits were likely to be treated as community property and that his federal benefits at least arguably belonged to the community as well . . . . Even as to doubtful matters, an attorney is expected to perform sufficient research to enable him to make an informed and intelligent judgment on behalf of his client.12

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Likewise, in Horne v. Peckham,13the lawyer was found liable for his negligence in drafting a trust agreement that had negative tax consequences for the client, consequences that would have been obvious if the lawyer had conducted basic legal research. In holding the lawyer liable, the court pointed out the lawyer’s duty to either research the law or at least make the client aware of the uncertainty with the law by stating that "an attorney has a duty to avoid involving his client in murky areas of the law if research reveals alternative courses of conduct."14In addition to the risk of being liable in damages to the client, there is the almost worst sanction of public embarrassment. In Bradshaw v. Unity Marine Corp.,15note the court’s sarcasm regarding counsel’s inability to properly cite precedents in support of their written arguments in their briefs regarding a claim under maritime law for damages for personal injury to a seaman sustained while working aboard a ship at dock:

Defendant begins the descent into Alice’s Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims . . . . That is all well and good - the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court’s water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and...

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