Legal Research and Writing Malpractice

• Author: Ted Tjaden
• Pages: 373-396

373

CHAPTER 11

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 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 re search 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 possesses. The

very essence of lawyering assumes that the lawyer, as a legal special-

ist, either knows the law or can identify and f‌ind the relevant law in

order to provide a competent legal opinion to the client or properly

represent the client in court. In recent year s, continuing legal education

or lifelong learning for lawyers has been an important issue for Can-

adian provincial law societies and the liability insurers for Canadian

LEGAL RESEARCH AND WR ITING374

lawyers. Although there are relatively few Canadian cases dealing spe-

cif‌ically with legal research malpractice, it is reasonable to assume that

the improvement by all lawyers of legal research skills and the other

competencies discussed in Chapter 1 (in Rule 3.1 of the Model Code of

Professional Conduct of the Federation of Law Societies of Canada) will

reduce the incidences of malpractice clai ms against lawyers. This chap-

ter looks at Canadian and American cases dealing with legal research

malpractice and the consequences of sloppy drafting of court docu-

ments; it then provides some basic tips th at lawyers can apply to reduce

the risk of being liable for legal research and writing malpractice.

B. CANADIAN CASES ON LEGAL RESEARCH

M AL PR AC TICE

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 Rule 2 of Chapter II (Competence and

Quality of Ser vice) of the Canadian Ba r 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 equa l to that which lawyers would expect of a compe-

tent lawyer in a like situation.”2

The law in Canada regarding the civil liability of lawyers for neg-

ligence is relatively well def‌ined, with there being a number of good

books3 and well-organized case digests on legal malpractice more

generally.4 The majority of malpractice claims against lawyers usually

1 See Central & Easter n Trust Co v Rafuse,[1986] 2 SCR 147 at 208.

2 Canadia n Bar Association, Code of Professional Conduct (Ottawa: Canadian Bar

Associ ation, 2009) at 5, online: ww w.cba.org/CBA /activities/p df/codeofconduct.

pdf.

3 For Canadia n books on the civil liabil ity of lawyers for negligence more gener-

ally, see John Campion & Dia na Dimmer, “Civil Liabilit y for Lawyers” in Profes-

sional Liability in Can ada (Toronto: Carswell, 1994) (loose-le af) ch 7; Raj Anand

& Steve Doak, “Profes sional Liability” in Ad am Dodek & Jeffrey Hoskin s, eds,

Canadian Legal Practi ce: A Guide for the 21st Century (Markham, ON: LexisNexis

Canada, 20 09) (loose-leaf ) ch 11; Mark Vincent Ellis, “Law yers” in Fiduciary

Duties in Canad a (Toronto: Carswell, 1988) (loose-lea f) ch 9; Stephen Grant &

Linda Roth stein, Lawyers’ Professional Liability, 3d ed (Mark ham, ON: Lexis-

Nexis Can ada, 2013); Lewis Klar et a l, eds, “Professional Neglige nce” in Rem-

edies in Tort (Toronto: Carswell, 1987) (loose-leaf ) ch 16 (Part III).

4 For Canadia n case law digests on the topic of t he civil liability of la wyers for

negligence, see Westl awNext Canada, The Canadian AbridgmentCase Digests,