A. Introduction

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

Page 321

The concept of legal research malpractice and the extent to which a lawyer has adequately carried out legal research on behalf of a client is not widely discussed in Canada, although there have been several cases where the topic has been raised. The issue, however, has been more widely litigated in the United States, and there is every reason to believe that Canadian courts will readily apply principles of legal research malpractice in appropriate cases where a lawyer has failed to conduct legal research or has done so incompetently. What is less certain is the extent to which Canadian courts will impose a duty on lawyers to conduct online legal research in appropriate cases. Given the increase of material online, and given the depth, accuracy, and speed of commercial online law-related databases, it is likely that courts will regard online legal research skills as a standard by which all lawyers and legal researchers should be judged.

In Chapter 1, Section A, brief mention was made of the importance of legal research as a skill that every competent lawyer should possess. The very essence of lawyering assumes that the lawyer, as a legal specialist, either knows the law or can identify and find the relevant law in order to provide a competent legal opinion to the client. In recent...

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