Legal Research and Writing Malpractice
| Author | Ted Tjaden |
| Profession | Faculty of Law and Faculty of Information Sciences University of Toronto |
| Pages | 248-264 |
CHAPTER
10
LEGAL
RESEARCH
AND
WRITING
MALPRACTICE
A.
INTRODUCTION
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 mal-
practice
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
mate-
rial 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 spe-
cialist,
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
years,
continuing legal education
or
life-long
learning
for
lawyers
has
been
an
important issue
for
Canadian provincial
law
societies
and the
248
liability insurers
for
Canadian lawyers. While there
are
relatively
few
cases dealing specifically with legal research malpractice,
it is
reason-
able
to
assume that
the
improvement
by all
lawyers
of
legal research
skills
and the
other competencies identified
by the Law
Society
of
Upper
Canada
can
only reduce
the
incidences
of
malpractice claims
against lawyers.
This
chapter
looks
at
Canadian
and
American
cases
dealing with legal research malpractice
and the
consequences
of
slop-
py
drafting
of
court documents,
and
then
attempts
to
provide
some
basic tips that lawyers
can
apply
to
reduce
the
risk
of
being liable
for
legal research
and
writing malpractice.
B.
CANADIAN
CASES
ON
LEGAL
RESEARCH
MALPRACTICE
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.1
Chapter II(b) (Competence
and
Quality
of
Service)
of the
Canadian
Bar
Association
Code
of
Professional
Con-
duct,
for
example, admonishes
the
lawyer
to
"serve
the
client
in a
con-
scientious, diligent
and
efficient
manner
so as to
provide
a
quality
of
service
at
least equal
to
that which lawyers would expect
of a
compe-
tent lawyer
in a
like
situation."2
From
this
general
standard
of
care, Canadian
courts
have specifi-
cally
discussed
the
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
corpo-
rate 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:
1 See
Central
&•
Eastern
Trust
Co. v.
Ra/use,
[Rafuse].
2
(Ottawa: Canadian
Bar
Association, 1988)
at 5.
Legal
Research
and
Writing Malpractice
249
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