(Originally published Oklahoma Bar Journal May 17, 1997 - Vol. 68; No. 20)  

Professional Responsibility And The Research Attorney
By Richard J. Goralewicz

I am continually amazed, and occasionally amused, by colleagues remarks about my concentration in legal research and appellate matters. Occasionally, I think they believe this area presents a pressure free, low risk version of lawyering. Fortunately, I know for a fact that their cavalier expressions about legal research and writing do not extend to their own forays into the discipline. I would like to disabuse anyone of the notion that this area of law is cloistered from stress and liability. In fact, it sometimes presents a minefield.

Tort law recognizes that a lawyer is not expected to be perfect in giving advice to clients.1 Our Supreme Court, along with those of other jurisdictions, correctly holds that attorneys incur no liability for mere errors in judgment or mistakes on an unsettled point of law.2 Such necessary leeway should never be confused with license.

A publication in this field once speculated as to whether failure to find published on-point authority constitutes malpractice per se. The consensus of the anonymous respondents finds its best expression in the following:3

The duty of a legal researcher is to do a reasonable job. This means that in the countless volumes of legal publications that a researcher should have a logical, complete, systematic and effective approach to the four major elements of research.4

If a researcher can show or demonstrate a diligent effort to introduce himself to the subject via publications available, locate the case or legislative or constitution or regulation law in its publication range and then properly interpret and appraise the citations found, one can consider the researcher has done a reasonable job. (Emphasis in original).

An undercurrent of warning lurks within this response. The research attorney must, if questioned, establish the competency of his or her research methods. Thus, the shadow of the "reasonable [professional] man" lies as heavily upon this area of practice as any other.

Immunity from judgmental liability requires that the attorney make an informed judgment based upon reasonable research to ascertain relevant legal principles.5 In gray areas, an attorney must perform sufficient research to allow informed and intelligent judgment on behalf of the client.6 I am aware of no case in which "reasonable" is deemed synonymous with "perfunctory" or "superficial." Such an equation would contravene rather than further, the policies of modern jurisprudence regarding a lawyers responsibilities and liabilities. An attorneys license to practice (and contracts for employment) declare to the world in general, and specific clients in particular, that lawyer has certain minimal skills, knowledge and abilities.7 In fact, by definition "[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."8 Therefore, public policy requires attorneys exercise their position of trust and superior knowledge responsibly so as not to "affect adversely persons whose rights and interests are certain and foreseeable."9 Therefore:

If the law on a subject is well and clearly defined, has existed and been published long enough to justify that it was known to the profession, 'then a disregard of such rule by an attorney at law renders him accountable for the losses caused by such negligence or want of skill; negligence if knowing the rule he disregards it; want of skill if he was ignorant of the rule.' (Internal citations deleted).10

Also, an attorney's duty is ongoing. While our obligations may extend only to the provision of those services for which we are hired,11 we are nonetheless bound to see that the ascertainable rights of the client are protected as fully as possible.12 In doing so, we may probe the logical and legal boundaries of our client's interests.13 Though broad, this certainly is not without limits. We must remain undeviatingly within the scope of our immunities without crossing over into the realm of the specious.14 Moreover, our obligations do not cease with the termination of the client/attorney relationship.15 Therefore, our obligation to effectively ascertain and research the law does not end with the submission of a final brief, oral argument or even judgment. As one court has noted, "[g]ood appellate advocacy demands the regular reading of the Advance Sheets."16

A lawyer has two products to sell: time and advice. Like any other products, these may prove defective, thus causing damage. Clients stake their fortunes and, occasionally, their lives upon the strength of our legal skill and knowledge.17 We owe them no less than the best we can give. This maxim applies with equal force whether lawyers practice before the bar or in the library.

ENDNOTES

1. Myers v. Maxey, 915 P.2d 940, 945 (Okla. App. 1995).
2. Collins v. Wanner, 382 P.2d 105, 109 (Okla. 1963).
3. 8 Legal Research Journal, No. 2, p.2 (1984).
4. The article no where defines which "four major elements" this respondent meant. My own personal favorites are: location, verification (including Shepardizing), analysis, and application. I'm sure others could come up with equally sound alternatives.
5. Halvorsen v. Fergusson, 735 P.2d 675, 681 (Wash. App. 1986).
6. George v. Caton, 600 P.2d 822, 829 (N. Mex. App. 1979).
7. Viccinelli v. Causey, 401 S.2d 1243, 1245 (La. App. 1981).
8. 5 O.S. 1991, Chp. 1, App. 3-A, Rule 1.1.
9. Heyer v. Flaig, 449 P.2d 161, 165 (Ca. 1968).
10. Grabel v. Waldman, 84 N.Y.S. 2d 888, 891 (1948).
11. State ex rel Oklahoma Bar Ass'n v. Green, ___ P.2d ___, 68 OBAJ 1288, 1293 (Okla. S.Ct. #    SCBD 4116-4/8/97).
12. Birchfield v. Harrod, 640 P.2d 1003, 1009 (Okla. App. 1982).
13. 5 O.S. Chp.1, App. 3-A, rule 1.1
14. Whitlock v. Bob Moore Cadillac, ____ P.2d ____, 68 OBJ 1561, 1562 (Okla.S.Ct. #83,217 4/29/97); United States v. Collins, 920 F.2d 619 (10th Cir.1990).
15. Northeastern Oklahoma Community Development Corp. v. Adams, 510 P.2d 939, 941 (Okla. 1973).
16. Boss-Harrison Hotel Company v. Barnard, 266 N.E.2d 810, 811 (Ind. App. 1971).
17. See for example, In Re Opinion of the Judges, 221 P. 1041, 1042 (Okla. Crim 1924); State ex rel. Oklahoma Bar Ass'n v. Barnett, ____ P.2d ____, 68 OBJ 1663, 1665 (Okla.S.Ct. #SCBD 4176 5/10/97).

RICHARD J. GORALEWICZ is a member of the Oklahoma City firm of Turner, Turner, Braun & Goralewicz. He received his undergraduate degree from King's College and graduated from OCU Law School in 1982. He currently serves as Chairperson of the OBA Appellate Practice Section and as a member of the LRE Committee; the OCBA, in which he serves on the Legal Aid Committee and as contributing writer to The Briefcase; he is a member and past president of the Kingfisher County Bar Association, and serves on the Board of Directors of Legal Aid of Western Oklahoma.