373
CH AP TER 11
LEGAL RESEARCH AND
WR ITING M ALPR ACTICE
A. INTRODUCTION
The concept of legal research malpractice and the extent to which a
lawyer has adequately carried out legal research on beha lf of a client
is not widely discussed in Canada, although there have been s everal
cases where the topic has been raised. The issue, however, has been
more widely litigated in the United States, and t here is every reason
to believe that Canadi an courts will readily apply principles of legal
research malpract ice in appropriate cases where a lawyer ha s failed
to conduct legal research or has done so incompetently. What is less
certain is t he extent to which Canadian court s will impose a duty on
lawyers to conduct online legal re search in appropriate cases. Given the
increase of materi al online, and given the depth, accuracy, and speed
of commercial online law-related databa ses, 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 law yering assumes th at 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 l aw societies and the liability i nsurers for Canadian
LEGAL R ESEARCH AND WR ITING374
lawyers. Alt hough there are relatively few Canadian ca ses dealing spe-
cifically with legal research malpractice, it is reasonable to as sume that
the improvement by all lawyers of legal res earch 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 dea ling 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, 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 Ser vice) of the Canadian Ba r Association Code of Professional
Conduct, for example, admonishes the lawyer to “serve t he 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 regardi ng the civil liability of lawyers for neg-
ligence is relatively well defined, with t here being a number of good
books3 a nd well-organized case digests on legal malpractice more
generally.4 The majority of malpractice claims against lawyers usual ly
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 Abridgment Case Digests,
