Legal Research and Writing Malpractice
| Author | Ted Tjaden |
| Profession | National Director of Knowledge Management McMillan LLP |
| Pages | 321-340 |
321
CHAP TER 11
LEGAL RESEARCH AND
WR ITING M ALPR ACTICE
A. INTRODUCTION
The concept of legal research malpractice and the ex tent to which a
lawyer has adequately carried out legal research on beh alf of a client
is not widely discuss ed 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 Canadi an 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 t he extent to which Canadia n courts will impose a duty on
lawyers to conduct online legal research in appropriate ca ses. Given the
increase of material online, and given the depth, accurac y, and speed
of commercial online law-related databases, it is likely that courts will
regard online legal research skills as a sta ndard by which all law yers
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 th at the lawyer, as a legal spe-
cialist, either knows t he law or can identify and fi nd 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 lawyer s has been an
important issue for Can adian provincia l law societies and the li abil-
ity insurers for Canadi an lawyers. While there are relatively few cases
LEGAL R ESEARCH A ND WRITING322
dealing specifically wit h legal research ma lpractice, it i s reason able to
assume that the improvement by all law yers of legal research ski lls and
the other competencies identified by the Law Society of Upper Canada
can only reduce the incidences of malpractice cl aims against lawyers.
This chapter looks at Canadian and American case s dealing with legal
research malpract ice and the consequences of sloppy drafti ng of court
documents, and then attempts to provide some ba sic tips th at lawyer s
can apply to reduce the risk of being liable for legal research and writ-
ing malpractice.
B. CANADIA N CA SES ON LEGAL RESEARCH
MALPRACTICE
As a general rule, law yers are required to bring reasonable care, skill,
and knowledge to the performance of the professional services they
have undertaken to perform.1 Rule 2 of Chapter II (Competence and
Quality of Service) of the Canadian Bar Association Code of Professional
Conduc t, for example, admonishes the law yer to “serve the client in a
conscientious, diligent and efficient manner so as to provide a quality
of service at least equa l to that which lawyers would expect of a compe-
tent lawyer in a like situation.”2
Fro m th is gene ral sta nda rd o f ca re, Can adi an cour ts hav e di scu sse d
a specific standard of c are 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’ mort-
gage security constituted a valid ch arge in a situation where the mort-
gage was later held to be void under Nova Scotia corporate legislation.
In holding that the liabil ity of lawyers could ari se in both tort and con-
tract for negligently performing ser vices for which they were retained,
the Court went further to hold that the law yers in that part icular case
were negligent for failing to have ascertained the existence of the rel-
evant corporate legislation that would have affected the enforceability
of the mortgage. In so holding, the Supreme Court of Canada applied
both American and Br itish law in suggesti ng that a lawyer, to avoid be-
ing negligent, may have a duty to adequately research t he law in order
to properly advise a client:
1See Central & Eastern Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at 208.
2 Canadian Bar Association, Code of Professional Condu ct (Ottawa: Canadian Bar
Associat ion, 2009) at 5, online: www.cba.org/CBA /activities/pd f/codeofconduct.
pdf.
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