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Legal Research Ethics
Presented by Melanie Hodges Neufeld
October 29, 2014
This presentation covers three areas of legal research ethics: lawyer competency,
adverse authority and fees. For more information, please contact Melanie Hodges
Neufeld at melanie@lawsociety.sk.ca. Please also find attached an information sheet of
the resources and services available at the Law Society of Saskatchewan Library.
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I.
Competency
a. Generally
The Law Society of Saskatchewan Code of Professional Conduct deals with
competence in chapter 2.01:
2.01(1) In this rule
“Competent lawyer” means a lawyer who has and applies relevant knowledge,
skills and attributes in a manner appropriate to each matter undertaken on behalf
of a client and the nature and terms of the lawyer’s engagement, including:
(a) knowing general legal principles and procedures and the substantive law and
procedure for the areas of law in which the lawyer practises;
(b) investigating facts, identifying issues, ascertaining client objectives,
considering possible options and developing and advising the client on
appropriate courses of action;
(c) implementing as each matter requires, the chosen course of action through
the application of appropriate skills, including:
(i) legal research;
(ii) analysis;
(iii) application of the law to the relevant facts;
(iv) writing and drafting;
(v) negotiation;
(vi) alternative dispute resolution;
(vii) advocacy; and
(viii) problem solving;
….
Note that legal research is highlighted as one of the appropriate skills required to be a
competent lawyer.
The Code at 2.01(2) also adds that “A lawyer must perform all legal services undertaken
on a client’s behalf to the standard of a competent lawyer”. The commentary for this rule
is rather extensive and I recommend you review it. Only a few sections are reproduced
below. First, the commentary states:
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Competence is founded upon both ethical and legal principles. This rule
addresses the ethical principles. Competence involves more than an
understanding of legal principles: It involves an adequate knowledge of the
practice and procedures by which such principles can be effectively applied. To
accomplish this, the lawyer should keep abreast of developments in all areas in
which the lawyer practices.
The commentary also states:
This rule does not require a standard of perfection. An error or omission, even
though it might be actionable for damages in negligence or contract, will not
necessarily constitute a failure to maintain the standard of professional
competence described by the rule. However, evidence of gross neglect in a
particular matter or a pattern of neglect or mistakes in different matters may be
evidence of such a failure, regardless of tort liability. While damages may be
awarded for negligence, incompetence can give rise to the additional sanction of
disciplinary action.
b. Disciplinary Action for Incompetency
Prior to the 1970s, lawyer incompetence was not deemed a matter for discipline unless
there was also a breach of another ethical duty or professional norm.1 Disciplinary
action for lawyer incompetence is still not particularly common today. As the
commentary above states, a mistake that could be actionable for negligence may not
equal professional incompetency. Rather, a pattern of incompetence or egregious error
is generally required.
The leading case in this area is Nova Scotia Barristers’ Society v. Richey, [2002]
L.S.D.D. No. 30. In this case, the lawyer demonstrated a consistent pattern of
incompetence. “Repeated examples of the absence of specific skills – in this instance
the skills of conscientious, diligent, and efficient service to client – will support a finding
of incompetence.”2
The hearing committee also noted that the lawyer need not be ‘incompetent’ on all files.
The Committee noted that when Mr. Richey “was good, he was very good, but when he
was bad, he was…incompetent3 ….good people make bad mistakes. When a pattern of
such poor judgment emerges, as it did in this instance, good lawyering skills on some
files is no defence to incompetent lawyering on other files. When the pattern of
1
nd
Alice Woolley, Richard Devlin & Brent Cotter, eds, Lawyers’ Ethics and Professional Regulation, 2 ed (Toronto:
LexisNexis Canada, 2012 at 101.
2
Richey at para 10.
3
Ibid at para 13.
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individual acts of neglect becomes troubling predictable, then the line is crossed from
isolated acts of error in judgment to incompetence.”4
c. Incompetence in Legal Research
There do not appear to be any cases in which a lawyer faced disciplinary action
specifically for incompetent legal research. However, it is not inconceivable that failure
to conduct adequate legal research could result in disciplinary action, assuming it forms
a pattern of behaviour or is one instance of a particularly egregious nature. Law Society
of Upper Canada v. Sawhney, 2012 ONLSHP 13, does include a charge that the lawyer
spent unnecessary and excessive amounts of time on legal education and research.
This case will be discussed further below.
What about the question of whether lawyers can meet their ethical obligations by
‘outsourcing’ legal research to either junior lawyers within their firm or to other legal
research professionals? The answer is the same for any delegation of work – the
lawyer’s ethical obligation is to be sure that the person conducting the research is
competent and that the lawyer is providing sufficient supervision of the work being
completed.
d. Obligation to Use Technology
Can a lawyer properly conduct research without relying on online sources? First, this
question is likely irrelevant to the majority of our members. A survey conducted by the
Law Society in 2013 indicated that most lawyers in the province are not using the
physical libraries for research, but are instead relying on online resources. For the small
percentage that resist technology completely, it is difficult now and will only become
more difficult to purely conduct print-based research and still meet ethical obligations to
the client. Online sources simply provide the most current information - for example
most cases appear on CanLII within several days at the latest.
The Court in Atkinson v. McGregor, 1998 ABQB 629, made this observation:
Done responsibly, computer access to data bases will give lawyers, and
therefore litigants, much quicker access to applicable case law than can be
achieved by the traditional, labour intensive, methods of legal research. The
dramatic savings in time spent result in major savings to the clients. In addition,
computerized legal research gives access to current case law, months before
any of those cases would be published by traditional means. It may be too soon
4
Ibid at para 14.
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to declare that the normative standard for legal research is computer research,
but the day on which courts will make that pronouncement cannot be far off.
While our Code is silent on this issue, the recently released CBA “Practising Ethically
with Technology” provides the following useful information:
Technology has become an important part of contemporary legal practice.
Lawyers should be able to recognize when using technology is needed to
provide a legal service effectively and understand how to use technology
responsibly and ethically. Although codes of professional conduct in
Canada don’t explicitly require the use of technology, a number of ethical
obligations under the codes – for example, to adapt “to changing
professional requirements, standards, techniques and practices” and to
maintain “office staff, facilities and equipment adequate to the lawyer’s
practice” – suggest that the appropriate use of technology in the
circumstances must be considered.5
e. Convincing Lawyers Legal Research Training is Important
Legal research has shifted from a focus on how to find materials to careful evaluation of
the wealth of information each search yields. That is, finding information is no longer the
challenge, but determining how relevant or accurate the information is. Many lawyers, in
particular young lawyers, are increasingly conversant in searching the internet for
everyday information. Lawyers may erroneously believe that since they are so
conversant, they must naturally know how to find and evaluate legal sources.
However, there are a number of studies that show that the legal research skills of law
students are declining and that many students lacked basic research skills. This decline
likely affects all members of the Law Society, no matter the age. Common concerns
include:
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inefficiency,
problem distinguishing among sources,
satisficing (or doing just enough research to get by), and
overconfidence in research hand writing abilities
The research suggests that students’ confidence in their own research abilities has
risen even as core skills have declined. One study also indicated that students believe
that legal research would be the easiest skill for them to learn in law school. This
overconfidence may be leading students and lawyers to believe legal research training
is unnecessary.
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at page 1 CBA Ethics and Professional Responsibility Committee
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II.
Adverse Authority
a. The “You Should Because You Are Supposed To” Argument
Lawyers are obligated to inform the court about both positive and negative authorities.
Rule 4.01(2)(i) of the Code of Professional Conduct states:
4.01(2) When acting as an advocate, a lawyer must not:
(i)
deliberately refrain from informing a tribunal of any binding authority
that the lawyer considers to be directly on point and that has not
been mentioned by another party;
The leading case on this issue is General Motors Acceptance Corp. of Canada v. Isaac
Estate, 7 Alta. L.R.(3d) 230. In this case, counsel failed to disclose a relevant decision
despite being counsel on the previous decision. Solicitor and client costs were awarded
because of this exceptional circumstance:
When I read the briefs I noticed that neither referred to Sherwood. I was aware of
the two Queen's Bench decisions in Sherwood but I was not aware of the Court of
Appeal's decision.
I eagerly awaited to see if either counsel would bring up Sherwood in their oral
submissions. Neither did. I assumed, wrongly as it turns out, that neither was
aware of it.
At the end of the day, after I had heard the submissions of both counsel, I told
them that I was reserving my decision and that I would give a written decision.
I then told counsel that there was a remarkably similar case where there was a
written decision by Master Alberstat which was upheld by a written decision by a
chambers judge. (I had not had the time to run down the case and I did not
offhand know its name or who counsel were on it).
My disclosure at the end of the day of my knowledge of the two Queen's Bench
decisions in Sherwood prompted a sudden revelation by Mr. Weldon of his
knowledge of the case. He quickly told me the name of the case, that he was
counsel for GMAC on it and that he had been rejected by the Court of Appeal a
few weeks before.
When I disclosed my knowledge of Sherwood it became obvious that I intended to
run it down (when I got back to Edmonton) and that I would then see that Mr.
Weldon was counsel for GMAC on it. The jig was up. Better a belated disclosure
than not one at all.
It was Mr. Weldon's responsibility as an officer of the Court to bring Sherwood to
my attention. Silence about a relevant decision, especially a binding one, is not
acceptable.
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I am satisfied that only my fortuitous knowledge of the Queen's Bench decisions in
Sherwood and my disclosure of that knowledge were the events which triggered
Mr. Weldon's disclosure of his knowledge of Sherwood. It is not supposed to be
that way.
It would not be an answer to say that Sherwood is distinguishable so it need not
be disclosed. That also does not work that way. The fallacy in that argument
should be obvious. That would leave it to counsel to decide if a case is
distinguishable. Counsel do not make that decision. The Court does.
It is proper for counsel to bring forward a relevant case and then submit that
it is distinguishable for whatever reason. That is fair play. It is improper to
not bring forward a relevant case on the ground that it is distinguishable.
That is not fair play. (emphasis added)
The Court further relied upon Lougheed Enterprises v. Armbruster, 1992, CanLII 1742
(BCCA) pp. 323-325:
The concept of judicial self-restraint, to which we adhere, is founded, if not wholly,
at least in part, upon the assumption that counsel will do their duty, which is to do
right by their clients and right by the court, and that all parties will be represented
by counsel. In this context, "right" includes taking all legal points deserving of
consideration and not taking points not so deserving. The reason is simple.
Counsel must assist the court in doing justice according to law. When a point is
deserving of consideration, the judge must have regard to all the relevant
authorities.
….
1. We do not expect counsel to search out unreported cases, although
if counsel knows of an unreported case in point, he must bring it to the
court's attention.
2. "On point" does not mean cases whose resemblance to the case at
bar is in the facts. It means cases which decide a point of law.
3. Counsel cannot discharge his duty by not bothering to determine
whether there is a relevant authority. In this context, ignorance is no
excuse.
In the case at bar, there was a relevant authority which went to the
very root of these proceedings. It said that the order sought in the
petition could not be granted as a matter of law.
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b. To Strengthen Legal Argument & Maintain Integrity Before the Court
As noted from the cases above, the court takes a dim view of that type of advocacy.
Maintaining credibility before the court can impact the court’s trust in a lawyer’s
research and advocacy.6 Incorporating the adverse authority into your argument will
also bolster your argument. As noted in one American article:
“[t]he diligent attorney may feel particularly galled by the compulsion to provide
the benefit of this research to an opponent who has not made the same
effort….the lawyer may take comfort in the fact that the court probably would
have found the adverse decision on its own, and the court will, by the attorney’s
disclosure, appreciate the attorney’s thoroughness and integrity. Moreover, by
being the first to discuss potentially damaging authority, the… attorney can
minimize the impact of the authority by qualifying it or distinguishing it on the
facts or legal content.7
c. Final Advice
A recent American case8 provides the following advice:
The ostrich is a noble animal, but not a proper model for an appellate advocate.
The “ostrich-like tactic of pretending that potentially dispositive authority against a
litigant’s contention does not exist is as unprofessional as it is pointless.”
Remember, thorough legal research should uncover at least some authority that does
not favour your position.
III.
Fees
a. Unreasonable Fees
Rule 2.06(1) of the Code deals with reasonable fees and disbursements:
2.06(1) A lawyer must not charge or accept a fee or disbursement, including
interest, unless it is fair and reasonable and has been disclosed in a timely
fashion.
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See Kathryn A. Sampson, “Adverse Authority: Rationales and Methods for Using It to Strengthen Legal Argument”
(1999) Arkansas Law Notes 93.
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Kay Nord Hunt & Eric J Magnuson, “Ethical Issues on Appeal” (1993) 19 Wm Mitchell L Rev 659 at 673.
8
Gonzalez-Servin v. Ford Motor Co, 662 F. 3d 931 (7th Cir. 2011) at 5.
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The commentary on this rule provides the following factors for determining what is a fair
and reasonable fee:
(a) the time and effort required and spent;
(b) the difficulty of the matter and the importance of the matters to the client;
(c) whether special skill or service has been required and provided;
(d) the results obtained;
(e) fees authorized by statute or regulation;
(f) special circumstances, such as the postponement of payment, uncertainty of
reward, or urgency;
(g) the likelihood, if made known to the client, that acceptance of the retainer will
result in the lawyer’s inability to accept other employment;
(h) any relevant agreement between the lawyer and the client;
(i) the experience and ability of the lawyer;
(j) any estimate or range of fees given by the lawyer; and
(k) the client’s prior consent to the fee.
Lawyers are rarely disciplined for charging unreasonable fees. Usually, any complaints
to the Law Society regarding fees are referred to the assessment process. See
Merchant Law Group LLP and Wei Wu v. Wei He, 2013 SKQB 299, for an overview of
the assessment process in Saskatchewan and the factors for determining a fair and
reasonable fee. Also of interest is the research time that was discounted by the
assessment officer from nearly 94 hours to 15 hours. The assessment officer stated:
While the issue of setting aside an issued Divorce Judgment and Certificate is
not a common issue, it is not unique. I do not accept billing of this magnitude to
be acceptable or reasonable.9
The Court rejected counsel’s arguments that it was not open to the assessment officer
to decide generally that the lawyer spent too much time on research. However, the
Court also held that such a large discount “was not consistent with the principle that a
lawyer is entitled to the value of his services, resulting in an award that was inordinately
low”.
There are no Saskatchewan discipline decisions dealing with unreasonable fees,
particularly for legal research. However, in Law Society of Upper Canada v. Sawhney,
2012 ONLSHP 13, the charges against the lawyer included:
a. The respondent delayed J.P’s action by taking unnecessary steps, and failing
to take necessary steps, when he
….
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Merchant at 10.
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iv.
Spent unnecessary and excessive amounts of time on legal
education and research;
Please note that this was only one of many examples of the lawyer failing to perform
legal services to the standard of a competent lawyer. The lawyer was also charged
separately for fees that were not fair or reasonable:
(5)
The respondent charged fees to his clients J.P. and N.M. that were not fair
or reasonable, contrary to Rule 2.08(1) of the Rules of Professional
Conduct and failed to provide an estimate of potential fees and
disbursements.
The Panel found that the fees charged were clearly excessive. For example, the lawyer
spent 81 hours in research and drafting before issuing a statement of claim. The Panel
stated:
The Record shows that he expended large amounts of time and billed many tens
of thousands of dollars to educate himself in the law on basic or inapplicable
issues and in mistakenly pursuing efforts to move a generally straightforward file
in to a process reserved for complex matters with multiple parties and counsel.
The hearing panel finds that Mr. Sawhney’s egregious overbilling stands, on its
own, as a finding of professional misconduct in breach of Rule 2.08(1) of the
Rules of Professional Conduct because he was charging to educate himself, and
because of the limited value of the claim and the results involved.10
b. Recovery of Online Legal Research Fees
Ted Tjaden provides an overview of this topic in his book Legal Research and Writing.11
Two circumstances in which the court or taxing officer has allowed recovery of the costs
of online research are (i) where a client is challenging the bill of its own lawyer and (ii)
where the losing party is obliged to pay the winning party’s costs but objects to the
amount. Below is a brief summary.
(i)
Assessment
The courts or assessment/taxation officer will generally favour the client and not require
the client to reimburse their lawyer for online research disbursements unless:
10
Sawhney at paras 66, 67.
Ted Tjaden, Legal Research and Writing, 3d ed (Toronto: Irwin Law, 2010) at 11. This book is also available in the
Irwin ebook collection available in the Members’ Section.
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the law firm has clearly indicated in its retainer agreement with the client
that the firm may incur such charges on behalf of the client and pass those
costs on to the client, and
the costs were necessary and reasonable
Please note that in several cases reimbursement was denied by the court on the basis
that the firm had a flat rate arrangement with the online provider.
(ii)
Party Costs
Generally the winning party will be able to recover the costs of legal research, including
the cost of online search charges such as Quicklaw. Of course, there are cases in which
legal research costs were not allowed or reduced because the research was held to be
unnecessary or not conducted in a reasonable manner.