ethics, accountability, and cost-benefit analysis in legal research

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Ethics, accountability, andcost‐benefit analysis in legalresearchSusan Johanne Adams a & Molly Warner Lien aa Chicago‐Kent College of Law , Illinois Institute ofTechnology , Chicago, Illinois, 60606, USAPublished online: 11 Jun 2008.

To cite this article: Susan Johanne Adams & Molly Warner Lien (1995) Ethics,accountability, and cost‐benefit analysis in legal research, Accountability in Research:Policies and Quality Assurance, 4:2, 115-131

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Ethics, Accountability, and Cost-BenefitAnalysis in Legal ResearchSusan Johanne Adams and Molly Warner LienChicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois60606, USA

The ethical standards that govern the legal profession are adopted by supreme courts andenforced through the state bar associations. Central to these codes is a recognition of the tworoles of a lawyer, client's advocate and officer of the court, roles that frequently conflict. Thecodes of ethics necessarily set general standards for professional competency and candor. In aworld where both legal issues and sources of legal research are becoming more complex, lawyersmust often try to keep research costs down at the risk doing less than thorough research. Thelawyer's choice potentially exposes her to either a malpractice suit or bar discipline. To preparenew lawyers better to balance such competing considerations, law schools are now taking amore active role in making the study of ethical considerations central to legal education.

Keywords: Law, ethical codes, legal research, advocacy, computer-assisted research, malpractice, litigation,adversarial system

Accurate and thorough research is the foundation of both day-to-day lawyering forclients and of the development of the law itself. A lawyer can represent a clientonly with an understanding of both the applicable legal rules and the underlyingfacts. Likewise, a lawyer can serve as an effective officer of the court only insofar asthe arguments presented enable the court to decide what the law should be basedon an accurate understanding of what the law is. Knowledge about how to doresearch is therefore basic to the practice of law as a learned profession.

The legal profession mandates a measure of accountability in both factual andlegal research in a variety of ways. Lawyers who are negligent in failing to discovereither the relevant facts or law may be liable to their clients for professionalmalpractice. Likewise, inaccurate or inadequate research may subject an attorneyto either sanctions by a court or disciplinary proceedings for violations of ethicalrules. Inadequate research can also damage the legal system. While the touchstoneof any "profession" is that the "members accept a commitment to a cause tran-scending self-interest,"1 only a lawyer acts both in the interest of the client and asan officer of the court with enforceable duties to society as a whole.2 In the field ofcriminal defense, defense counsel must provide "adequate" representation inorder for the judicial system to function.3 Finally, the law of the marketplace alsoapplies; the lawyer who loses a case or gives incorrect advice because of deficien-cies in research will often lose both clients and reputation.

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However, the standards of adequate research remain relatively general and notaltogether instructive. Accountability in research is further complicated by the factthat lawyers are often torn by conflicting obligations. Lawyers who locate legalprecedent that will hurt the client's case understandably grow less enthusiasticabout the research task as it progresses.

In the last ten years, statutory codes of procedure, formal court rules, andindividual judges, using the "inherent powers" of the courts, have begun toaddress these issues, imposing more exacting obligations. Lawyers filing com-plaints in court can no longer simply rely on a client's version of the facts whereindependent investigation of the claim is possible. Likewise, tribunals have uni-formly insisted that lawyers inform the court of all applicable law, not merely oflaw favorable to the client.

This increased attention to accountability in legal research is, of course, desir-able. Inadequate research may adversely affect the development of the law itself.The role of courts in the American legal system is not merely to interpret the law,but rather to create law. Judicial decisions become binding precedents in futurecases in lower courts in the same jurisdiction.

At the same time, certain aspects of the insistence on thorough and accurateresearch have raised other issues. Must a lawyer conduct exhaustive research onevery matter? To adhere to too high a standard could exacerbate the ever-growingproblem of the costs of legal services and heighten the concern that legal servicesare simply unaffordable for most of the population. Moreover, these heightenedstandards come at a time when legal research is becoming much more complex.The sources of law in the form of statutes, regulations, administrative interpreta-tions, and court decisions are multiplying at what seems to lawyers to be anexponential rate. The factual side of cases also increasingly involves complexscientific questions that present lawyers with novel issues, often beyond the scopeof their experience and legal training.

This article attempts to provide some framework for determining what consti-tutes adequate legal research. The article first describes the roles of a lawyer andthe many situations in which a lawyer does legal and factual research. Second, thearticle details the many sources of law in the American legal system and theconcomitant complexity and importance of legal research. Third, the article ana-lyzes the nature and sources of an attorney's obligation relative to research andsummarizes the legal and ethical norms that define the adequacy of research.Finally, the article focuses on particular problem areas where the lawyer's obliga-tions relative to adequate research conflict either with the duty to be a zealousadvocate or the duty to provide cost effective legal services.

I. THE MANY ROLES OF THE LEGAL RESEARCHER

Lawyers act in a wide variety of roles, including advisor, advocate, negotiator,drafter, mediator, and evaluator.4 Many, if not most, lawyers may perform all ofthese functions in the course of their practice. Each of these roles requires bothfactual and legal research. For example, when a client contemplating a particulartransaction or contract retains a lawyer as an advisor, the lawyer will likely attempt

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Ethics, Accountability, and Cost-Benefit Analysis in Legal Research 117

both to conduct a factual investigation of the party with whom the client iscontracting and to identify the legal consequences of the proposed transaction.5

Next, the parties, either with or without the benefit of counsel, will negotiate atransaction based on the assembled research and concurrently ask their attorneysto draft an agreement that reflects their understanding.6 Finally, if a dispute arisesand the matter results in litigation, the lawyer must again do both factual and legalresearch before attempting to mediate the dispute or, most particularly, beforefiling any papers in court. Indeed, a failure to do adequate research on assertionsmade to a tribunal may subject the lawyer to immediate sanctions.

The roles of a lawyer likewise vary depending on the nature of the client. Clientsmay include private persons, governmental bodies, and multi-national corpora-tions, all with an infinite number of needs.7 Some clients have vastly superiorresources with which to pay for legal research, while others have none. Clients mayalso need legal services with varying degrees of urgency. For example, the clientaccused of a crime and facing incarceration or execution will require exhaustiveresearch on every aspect of a case, while a client considering a minor change in itspersonnel policies may need to do little more than consult a standard treatise onemployment law.8

Finally, while the availability of on-line data bases is equalizing the situation tosome extent, the circumstances of a lawyer's practice will shape the availability ofresearch materials. Lawyers in solo practice or small firms, for practical reasons,cannot maintain the same libraries as government offices and major firms. Largescale users of on-line research media may be able to negotiate more favorable ratesand increased access to these sources. Even public law libraries vary enormouslydepending on whether they are located in a rural or urban area. All of these factorshave produced both specialization and stratification in the profession of lawyeringand in the way lawyers approach legal research.

I I . THE COMPLEXITY OF AMERICAN LAW AND AMERICAN LEGAL RESEARCH

Researching law in the United States is a complex task because of the many sourcesof law that must be examined. For example, when a client is uncertain about itsduties under government regulations, the hierarchy of sources begins with theUnited States Constitution, which establishes limits on federal governmentalpower and protection for the rights of individuals. Likewise, assuming Congresshas the constitutional power to act on a given subject, its enactments are bindingin federal and state courts. Congress may in turn delegate some of its legislativepower to administrative agencies to define the precise nature of governmental regu-lation and polices in areas that are complex or will be administered and enforcedby administrative agencies. Assuming these regulations are both within the scopeof governmental power allowed by the Constitution and within the scope of thelegislative grant of power, they, too, are binding in all federal and state courts.9

While the executive branch of government is generally viewed as the enforcer ofthe law, it may also create law either directly, in the form of executive orders, orindirectly, through the creation of executive departments, which then issue regula-tions interpreting the law to guide enforcement.10 Such schemes of constitutional,

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statutory, and administrative regulation are common to most legal systems in theworld and, in themselves, a daunting body of authority to research.

Judicial decisions also create an enormously important body of law in the UnitedStates. Like most courts, American courts interpret constitutional and statutorymandates, focusing first on specific constitutional and statutory language at issueand, where the language is ambiguous, on the legislative history of the enactments.Unlike most other legal systems, however, American courts also create legal rules.11

This judicial process, known as the "common law" method, occurs both wherecourts give added meaning to the statute through statutory interpretation andwhere they create law in the absence of a statute. Finally, under the doctrine ofjudicial review, courts are empowered to examine legislative enactments andexecutive actions to determine their constitutionality.12

Reliance on judicial "doctrine" complicates legal research in the United States.An attorney in a civil or socialist legal system may generally ascertain the answerto a legal question by consulting the applicable statutes or regulations.13 TheAmerican lawyer's research task is often more complicated. American courtsadhere to the doctrine known as stare decisis (literally to "stand decided"). Thedoctrine holds that courts are absolutely bound by the precedents established inother decisions of higher courts in the same jurisdiction and should not overruleprecedents established even by their own prior decisions except in compellingcases.14

Locating these precedents requires time and expertise. There are approximately100̂ 000 new decisions each year.15 The number of actions taken by administrativeagencies defies measurement.16 State governmental structures generally parallelthe federal structure, with many state constitutional provisions, statutes, decisions,administrative regulations, and even local ordinances that must be examined inappropriate cases.17

Where there is no statute or binding judicial precedent directly on point, lawyersfrequently look to secondary materials, including legal encyclopedias, annotatedreporters, scholarly articles summarizing the law in a given area, the Restatementsof the Law prepared by the American Law Institute, and decisions in other jurisdic-tions on a similar issue.

In sum, researching legal issues in the United States can be enormously compli-cated. Lawyers can and do spend hundreds of hours trying to locate researchsuggesting what might prove to be a definitive line of argument, but this level ofresearch is often neither within the client's ability to pay nor justified by theimportance of the matter or the amount in dispute. Thus, lawyers must thereforedevelop an understanding of what the law requires in terms of adequate researchand sound judgment as to how much is enough.

III. SANCTIONS FOR INADEQUATE RESEARCH

Inadequate research may subject attorneys to sanctions from a variety of sources.Some of these sanctions involve direct monetary penalties, while others, such asinjury to reputation, are less immediate, but arguably more serious. A discussion ofeach of these measures follows.

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Tort Law Standards for Research

Tort law refers to that body of law that establishes remedies for those who havebeen victims of civil wrongs.18 It establishes a right to recover in a broad variety ofsituations. One may sue in tort for an intentional wrong such as assault and battery,or to abate or enjoin a nuisance, maintain an action for defamation, and to providea means of redress for those who have been injured by defective and dangerousproducts. By far the most common tort, however, is the action for negligence. Thiscause of action creates the malpractice claim that may sanction the inadequateresearcher.

Malpractice is generally thought of in conjunction with the medical profession,but malpractice law also governs standards of conduct for all professions, includ-ing law. The central question in any professional malpractice action is whether theprofessional has used that degree of skill and reasonable care that would beexpected of a member of the profession. In determining what constitutes "reason-able care" in the practice of law, the jury will consider the degree of care that apractitioner in the same or similar circumstances would normally exercise. It is notenough for lawyers to "attempt their best." Rather, lawyers are presumed to havethe standard minimum level of knowledge needed for all aspects of the lawyeringprocess, including the ability to do effective legal research. Lawyers are alsorequired to understand their own limitations and to refer the client to a specialistwith the particular knowledge or research skill needed.19 For example, a generalpractice lawyer who accepts a patent case and then damages the client because ofdeficiencies in patent research skill will be liable for failure to refer the client toan appropriate specialist.

In Smith v. Lewis,20 the court upheld a malpractice damage award against alawyer who had failed to locate legal principles that could have been discoveredthrough standard research techniques. The case was significant, because the issueconfronting the lawyer—a divorcing spouse's entitlement to a military pensionin a community property state—was not free from doubt. While the court ac-knowledged the general rule that a lawyer may not be liable for a mere mistake injudgment or inability to predict the result, it reasoned that where a novel questionof law is presented, the response of the lawyer must be researched in depth.21

Failure to do adequate research may result in substantial financial liability.At one time, the issue of whether a professional had the requisite degree of skill

included consideration of the locality in which the professional practiced. A lawyerin a small, rural practice was expected to use only the degree of skill and knowl-edge found in similar localities, not the same degree of skill and knowledge aswould be found in a city lawyer in a major firm. That rule has, however, beeneroded; courts now either consider the research materials available to the lawyer inquestion or simply apply national standards of expertise in legal research.22 Thetrend toward uniform standards of excellence in legal research is appropriate, sincevirtually all legal research materials are now nationally available both on-lineand in CD-ROM.

Even without the potential damage award, an action for malpractice can harm alawyer in many ways. One 1986 study reported that many malpractice defendantssuffered damage to their professional reputations, a long-term loss of consumer

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confidence, a loss of personal confidence and self-esteem, adverse health impacts,including possible increased use of drugs or alcohol, and even harm to the profes-sional's family relationships.23

Judicial Sanctions for Inadequate Research

A second form of sanction against inadequate research in the context of advocacyarises from court rules. Rule 11 of the Federal Rules of Civil Procedure, togetherwith the state rules patterned after it, requires that all pleadings, motions, andother papers be signed by an attorney. The rule further provides that:

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading,written motion, or other paper, an attorney or unrepresented party is certifying that to the best of theperson's knowledge, information, and belief, formed after an inquiry reasonable under the cir-cumstances—

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delayor needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolousargument for the extension, modification, or reversal of existing law or the establishment of a new law,

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, arelikely to have evidentiary support after a reasonable opportunity for further investigation and discovery;. . . ,24

Stated simply, a lawyer may not make unwarranted assertions about either thelaw or the facts in court or in any paper filed with a court. An attorney may make agood faith argument to distinguish existing precedent, but may not misrepresentthe existing precedent. In addition, attorneys are required to reveal adverse bind-ing authority in the jurisdiction if opposing counsel has neglected to do so. Therules also require that, in the course of putting the client's best foot forward, theattorney not omit key facts, fabricate facts, or use language that would mislead thetribunal.

Fulfilling the ethical obligations to client and court, while arguing persuasivelyand effectively, can put pressure on the most accomplished attorney. The tempta-tion is great to stop research as soon as a favorable precedent is located, to deal withunfavorable precedent "creatively," perhaps slightly misrepresenting the court'sholding to diminish the damaging effect of directly contrary authority, attemptingto distinguish an unfavorable case on an insignificant issue, or impermissiblyelevating a court's favorable comment to the status of a binding holding in anattempt to overshadow the court's unfavorable ruling. The possibilities are end-less, the spectrum broad, and the line between permissible and impermissiblemanipulation of precedents uncertain.

With respect to the lawyer's obligation to research and find legal authorities, thelawyer's obligations to the court are absolute. No obligation to the client can everjustify a misstatement to the court. Because of the role of judicial decisions inestablishing rules, judges must make those decisions based on accurate informa-tion about the content of governing precedents. While the lawyer as advocatemay—and indeed must—argue for the inferences that should be drawn from priorprecedents, those arguments should be directed toward persuading the court ofeither what it should do or what it must do. As one author has observed, "[b]oth arelegitimate, and both are usually present. With either question, however, all relevant

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law should be before the court, and this explains why candor in the citation ofauthority has long been required."25

Rule 11 requires an affirmative, reasonable investigation. That an attorney maybe unaware of an adverse precedent will not excuse the failure to bring it to thecourt's attention if it could have been located through reasonable research. Forexample, in Golden Eagle Distributing Comp. v. Burroughs,26 the United States Courtof Appeals for the Ninth Circuit was confronted with an unusual set of facts. Thebrief in question had argued that California law did not recognize the right todamages for economic loss in claims for negligent manufacture. In support of theargument, counsel cited Seely v. White Motor Co., a California Court of Appealsdecision.27 However, counsel failed to cite a subsequent California Supreme Courtdecision casting grave doubts qn the vitality of Seely as a precedent. Counsel alsofailed to cite two other Court of Appeals decisions, both of which questioned thecontinuing validity of Seely in light of the Supreme Court's later holding. TheDistrict Court sanctioned counsel, requiring payment of the opponent's attorneys'fees for breach of the obligation to disclose known adverse authority to a tribunal,reasoning that had counsel properly updated their research, they would haveknown of the adverse precedent. While the Court of Appeals reversed the sanction,its decision was grounded upon a generalized concern that such sanctions wouldencourage prevailing parties to file for sanctions as a matter of course and increasethe amount of litigation. The appellate court was careful to add, however, that "[a]lawyer should not be able to proceed with impunity in real or feigned ignorance ofauthorities which render its argument meritless."28

The case is a cautionary tale for lawyers. While it is easy to articulate the duty ofcandor, the lawyer's duties to the client make the application of the rule moredifficult. The duty of a lawyer to represent the client requires zealous advocacyof the client's position.29 The rationale behind the requirement of zealous advocacystems from the American adversarial system ideal that competent counsel for eachside present their arguments in the most positive light, trusting the neutral tribunalto determine how justice is best served.30 This ideal is, however, in constant tensionwith the attorney's duty not to misrepresent the law or the facts to the tribunal.31

Finally, in those instances where the lawyer's deficiency is not merely faultyresearch, but a knowing failure to disclose controlling adverse authority, the law-yer's conduct may violate both Rule 11 and the applicable provisions of a statedisciplinary code.32 Both the 1983 American Bar Association (ABA) Model Rulesof Professional Conduct33 and the earlier Code of Professional Responsibility34

require a lawyer to disclose known adverse authority not disclosed by the otherlawyer in the case.35 For example, in Cicio v. City of New York,36 the court held thatattorneys for the city had violated that ethical rule by failing to cite adverseauthority known to the city by virtue of the fact that it had been a party to twoof the prior cases.37

Rule 11 and the ethical codes also require a lawyer to undertake reasonableresearch to determine the factual merit of the client's position. Merely accepting theclient's version of the truth may not satisfy this obligation, where a factual investi-gation is possible. A standoff typically arises when an attorney comes into posses-sion of confidential information harmful to the client.38 While attorneys must beunflagging in their faithfulness to their clients and their commitment to putting

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their clients' cases in the best possible factual and legal settings, a function that isespecially critical in the criminal defense setting, this zeal must be balanced by akeen sense of the advocate's responsibilities of candor and honesty as an officerof the court.39

The classical check on attorney excesses is, of course, the proper functioningof the adversarial system. The attorney who plays fast and loose with the facts oruses authority in an unprincipled or misleading fashion runs a considerable risk ofexposure by opposing counsel. The risk of exposure is especially great whenattorneys submit documents or other evidence to the scrutiny of the court. Thenegligent and wilful failings of attorneys have been the subject of persistentjudicial comment.40

However, what remains to be determined is the extent to which courts willconsider the costs of legal and factual research and investigation in determiningwhether an investigation is reasonable. In many tort cases, for example, the courtconsiders the cost of prevention when determining whether the defendant couldreasonably have been expected to prevent the harm in question.41 At present, themandates of both Rule 11 and the correlative ethical rules do not explicitly allow forcost cutting.

For now, then, it is an open question whether, even given the high cost of legalrepresentation, an attorney who believes more research is called for may accedeto a client's request to limit expensive research hours.42 The interest of the client inlimiting the amount and cost of legal research is in constant tension with theattorney's absolute obligation to the court. Members of other professions may beable to offer varying degrees of service depending on the client's ability (orwillingness) to pay. Cost may properly determine the assurance and depth of anaccountant's audit, whether a dentist caps a tooth or pulls it, and the degree ofconstruction supervision an architect or engineer offers. But the quality and cost oflegal services is not, like these, a matter merely of private contract between theparties. In the American legal system, where so many of the legal rules that governour society are the product of judicial decision-making, the public has an interest inthe resolution of purely private disputes.

Ethical Mandates Demanding Accountability in Legal Research

A final body of law establishing standards for the adequacy of legal research stemsfrom the ethical rules governing the profession. Some of these rules, like ModelRule 3.3(a)(3), noted previously, are closely related to the lawyer's obligation to thetribunal. However, the ethical standards that guide attorneys in the practice of lawalso include a larger obligation of competence in all aspects of the lawyeringprocess.43

The Model Rules are divided into eight Articles, each addressing the ethicalresponsibilities of lawyers in their various roles.44 Lawyer discipline is accom-plished by state supreme courts, which often delegate this task to a disciplinaryagency. Sanctions imposed on practicing attorneys for ethical lapses differ underthe jurisdictions, but include disbarment, withdrawal of the license to practice,suspension, public or private censure, warning; or an opportunity to resign. The

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Rules, however, are designed to be the basis for attorney discipline, not for civilliability.

The Preamble to the Model Rules states that "[i]n all professional functions45 alawyer should be competent, prompt and diligent." Model Rule 1.1 says, simply:"A lawyer shall provide competent representation to a client. Competent represen-tation requires the legal knowledge, skill, thoroughness and preparation reason-ably necessary for the representation." This rule covers a broad spectrum: Attor-neys must be deemed competent to be admitted to the bar46; attorneys are obligedto gain and maintain skills and knowledge throughout their careers47; attorneysmust recognize when they are incapable, for whatever reason, to handle a matter;and attorneys must not neglect the cases that have been entrusted to them.48

The level of competence required varies with the relative level of difficulty of thelegal problem and is notoriously difficult to define.49 Like the tort rules discussedearlier, the Comments to the Model Rules advise attorneys to be realistic aboutpersonal limitations, recognizing when they are capable of learning the law re-quired to handle a case and when they would best serve the client by seekingassistance from, or bowing out in favor of, someone with the requisite expertise.50

All attorneys, whether new to the profession or experienced, are held to the samestandard of skill in evaluating precedent and evidence, in drafting, and in identify-ing legal issues.51 Comment [5] addresses thoroughness and preparation:

Competent handling of a particular matter includes inquiry into and analysis of the factual and legalelements of the problem, and use of methods and procedures meeting the standards of competentpractitioners. It also includes adequate preparation. The required attention and preparation are deter-mined in part by what is at stake; major litigation and complex transactions ordinarily require moreelaborate treatment than matters of lesser consequence.

Moreover, some recognized specialties, such as tax, patent, and securities lawclearly require special expertise, including the ability to research a huge andconstantly increasing body of law. Arguably, just as tort law holds to the standardof expert care persons who hold themselves out as experts, so should ethicalprinciples relating to competency.52

Critical areas of competence, and ones that are assumed of practitioners, experi-enced or new, are the ability to spot the relevant legal issues in a fact situation, tocollect and evaluate the relevant statutes and case law, and to have a thoroughgrasp of the relevant procedural requirements.53 Competence requires that theattorney be able to research, understand the thrust of the relevant authority, andapply it accurately to the client's situation. Finally, attorneys will find their researchand analytical skills wasted if they cannot communicate effectively, orally and inwriting.

MacCrate Report Recommendations

The preparation of attorneys to perform competently has been the focus of muchdebate in recent years in practitioners' circles and in the academy. In 1989, theAmerican Bar Association embarked on an attempt to characterize the professionin its many forms and to evaluate the relationship between the actual practice oflaw and the adequacy of legal education in preparing practitioners to function

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effectively. This lengthy project, chaired by Robert MacCrate, culminated in 1992 inan influential publication that has come to be known as the "MacCrate Report."54

Concerned with updating legal education to address the changing needs of thebar, the Report traced the emergence of skills courses, including legal research, asan integral part of law school training.55 Recently, the American Bar Foundationanalyzed survey data collected from members of the Chicago bar and from ruraland small city bars, examining practitioners' perceptions of the ability of currentlegal education to address their needs.56 Significant among the data compiled wasthat practitioners thought that law schools were successful in signalling the valueto law practice of sensitivity to professional ethical concerns (83%) and the impor-tance of both library research (90%) and computer research (81%); they alsothought that all of these skills can be taught effectively at law school (87%, 91%, and90%, respectively). However, when asked if enough attention was given to teach-ing these skills at law school, only 68% said that ethics received enough attention,75% were satisfied with training in library research, and 62% regarded theircomputer research to be adequate.57

Typically, professional responsibility is taught in a one-semester upper divisioncourse designed to familiarize students with the basic principles set out by theModel Code and Model Rules, to explore interesting ethical problems, and toprepare the students to take the professional responsibility portion of the multi-state examination, which focuses on settled ethical principles. Regrettably, sincelaw students usually take this course in their final semester, much of their legaleducation, including their training in legal research, does not include the necessaryethical perspective. Fortunately, a trend is developing to teach ethics in a pervasivefashion, that is, by discussing ethical questions in doctrinal and skills coursesacross the curriculum rather than isolating the study of ethics in an upper-levelcourse, almost as an afterthought.58 Those schools that have developed intensivelegal research and writing programs are beginning to place increased emphasis onthe obligation of absolute competence in legal research, including the obligationto be both thorough and cost efficient.

IV. CONCLUSION

Lawyers, like the members of all professions, have absolute obligations to theclient, including the obligation to be a zealous advocate and the obligation to becompetent in legal research. These obligations are enforced by civil tort liability,court rules, and ethical standards. However, these obligations also mandate fidel-ity as an officer of the court, an obligation fundamental to our system of law. Be-cause court decisions in private cases become binding rules of law, a court decisionbased on inadequate or even purposefully misleading research can affect society asa whole. Thus, it is open to question whether lawyers are able to make broadconcessions on the adequacy of research in order to accommodate a client's costconcerns. Lawyers are faced with this ethical conundrum at a time when legalresearch is increasingly complex due to the ever growing body of law. For thesereasons, it is essential that lawyers give priority to developing creative strategiesfor mastering the intricacies and efficiencies of legal research.

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NOTES

1. Roy W. Davis, Jr., In Pursuit of Professionalism, 1993 INT'L SOC'Y OF BARRISTERS Q. 355, 361 (quoting theHon. Simon K. Rifkind).

2. Id. at 360.3. There is a large body of decisional law as to what constitutes adequate representation. See, e.g.,

Cheek v. United States, 498 U.S. 192 (1991); Strickland v. Washington, 466 U.S. 668, 690 (1984).Inadequate representation may result in a determination that a criminal defendant has not receivedeffective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitu-tion. For example, in United States v. Vastola, 25 F.3d 164 (3d Cir. 1994), the court indicated thatinadequate research might provide a basis for overturning a conviction, but refused to overturn theconviction in that case because the attorney had supplemented the defective research prior toconviction.

4. Preamble: A Lawyer's Responsibilities, ABA MODEL RULES OF PROFESSIONAL CONDUCT (1983). Oneprofessor has termed this description the "moral ideal" which "provides the moral justification forwho we are and what we do as lawyers." J. SAMMONS, LAWYER PROFESSIONALISM 5 (1988).

5. This factual investigation may fake many form's. If the financial capacity of the other party isrelevant—as it usually is—the lawyer will want to investigate the solvency of the company orindividual. The lawyer may also want to determine whether the party has a history of breaching orhonoring contractual obligations by reviewing court records to determine how often the party hasbeen involved in litigation. Likewise, if the client has sought legal advice on transactions with acorporate entity, the lawyer may want to evaluate the relevant prospectus, the profitability of thecompany, and, where relevant, the tax consequences of the investment.

This research will require knowledge of public and private sources of information, includingcourt records, information on file with the applicable Secretary of State's office, and a completeknowledge of the available electronic data bases. The two on-line data bases most frequently usedby lawyers are LEXIS, marketed by Mead Data Corporation, and WestLaw, marketed by the WestPublishing Company. In addition to serving as comprehensive sources for legal research, each database contains a wide breadth of information, including financial information such as projectedearnings, dividends, the contents of all public documents filed with regulatory agencies, financialsoundness, as evaluated by organizations like Standard & Poor's, the names of persons or organiza-tions that have patented products, scientific and technical papers, stock market prices, rates ofcurrency exchange, and other information. Knowledge of how to use these data bases effectivelyand efficiently is essential for any lawyer. See generally ALFRED GLOSSGRENNER, HOW TO LOOK IT UPONLINE (1987); CHRISTOPHER G. WREN, JILL ROBINSON WREN, USING COMPUTERS IN LEGAL RESEARCH

639-49 (1994).

6. On-line research may again prove very useful in circumstances, such as insuring agreements orother form contracts, where relatively standard language is used. On-line research asks the com-puter to search for particular combinations of characters in a sequence to be identified by thesearcher, a process known as "boolean" searching after the form of mathematical logic named afterthe British mathematician, George Boole. WREN & WREN, supra, note 5 at 23. A lawyer may simplytake the actual words of the provision and ask the computer to search for cases that have construedthe same words in other circumstances.

7. Barbara A. Curran, The Legal Profession of the 1980s: Selected Statistics from the 1984 Lawyer StatisticalReport (June 1984).

8. John P. Heinz & Edward O. Laumann, The Legal Profession: Client Interests, Professional Roles, andSocial Hierarchies, 76 MICH. L. REV. 1111, 1113 (1978). Heinz and Laumann argue that the legalprofession as a whole is shaped by the external factor of client identity. Id.

9. For a good general discussion of the sources of law, see CHARLES R. CALLEROS, LEGAL METHOD ANDLEGAL WRITING 9-33, 66-70 (1994).

10. Perhaps the most familiar example to the non-lawyer will be the Internal Revenue Service.11. For an understanding of why the English speaking nations, and particularly the United States,

preserve such an important role for judge-made law, one needs to define the larger notion of law.Stated simply, law is: (1) a means for preserving order, and (2) a means for achieving justice. Civillaw systems, which look principally to legislative enactments as sources of law, are arguably better

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at preserving order, at least in the sense that law is more accessible and it is possible to more easilyknow what conduct is and is not permitted. However, the common law is arguably more responsiveto the need to achieve justice, which means a fair, just and equitable resolution of individualdisputes that may not have been the subject of legislative attention. For example, in Riggs v. Palmer,22 N.E. 188 (N.Y. Ct. App. 1889), the court was confronted with the case of a grandson who hadmurdered his grandfather in order to hasten an inheritance and prevent the father from changing awill in the grandson's favor. At the time the case was decided, the New York statute provided foronly two means of revoking a will: executing a new will that expressly revoked the prior will or,alternatively, destroying the will with the intent to revoke it. In order to achieve a just result, thecourt created an additional rule, which barred murderers from inheriting from their victims.

12. The doctrine of judicial review is one of the most unique and discussed aspects of Americanconstitutional law. While a comprehensive discussion is outside the scope of the article, the readershould understand that it is considered by many to be the cornerstone of the concept of separationof powers and central to the power of the judiciary as a law-creating institution. The seminal casewas the famous opinion of Chief Justice John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803). The decision involved a petition for a directive from the court, known as the writ ofmandamus, brought by William Marbury. Marbury had been appointed as a justice of the peace byoutgoing President John Adams on the last evening Adams was in office. When Thomas Jeffersontook office, his administration refused to deliver the commission. Chief Justice Marshall, a sup-porter of Adams and, indeed, the very outgoing Secretary of State who had failed to get thecommission delivered before Jefferson took office, knew that to order delivery of the commissionmight subject him to impeachment proceedings. After concluding that Marbury had been dulyappointed, the Court examined its jurisdiction to issue the remedy sought. Congress, in theJudiciary Act of 1789, had empowered the Supreme Court to issue writs of mandamus. However,the Court noted that Article III of the Constitution only vested the Supreme Court with jurisdic-tion in cases affecting ambassadors, consuls, other public ministers, and cases in which a state was aparty. The Court then determined that because Congress had been without the constitutional powerto vest it with jurisdiction in a case such as Marbury's, it could not issue the writ. Thus, in the veryprocess of holding that it had no power in a given case, the Court established as a matter ofconstitutional doctrine the ultimate judicial power, specifically, the power to invalidate acts of thelegislature on constitutional grounds.

See generally ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH 23-28 (1962); 2 WILLIAM CROSS-KEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 941-75 (1953).

13. While an oversimplification, the general wisdom is that the whole of continental Europe other thanthe former Warsaw Pact countries, together with South and Central America are "civil" lawjurisdictions in which legislatures and scholars, rather than decisional authorities, are the sources oflaw. RUDOLPH B. SHLESINGER, HANS W. BAADE, MIRJAN R. DAMASKA, PETER E. HERZOG, COMPARA-TIVE LAW 310-30 (1988). Socialist law, like civil systems, adheres to the primacy of statutes, on thetheory that statutes best reflect the will of the people rather than the will of arguably elitist judges.See G. Ajani, The Supremacy of Statutory Law in Socialist Legal Systems: Scholarly Opinions and Operative

Rules, 11 REV. SOC. LAW (1985). Although socialist principles are rapidly disappearing from the codeprovisions relating to property and contract law in some of the former Soviet Republics, mostnotably the Russian Federation, vestiges of socialist law are still found in many of the formerWarsaw Pact nations, some African nations under the former Soviet sphere of influence, many of theformer constituent republics of the former U.S.S.R., and China, Mongolia, Cuba, Vietnam, andNorth Korea.

14. What constitutes a compelling case or binding precedent involves complex questions. The prece-dent established by a case governs only like legal problems established by like cases. Precedentsmay be broadly or narrowly construed, and subject to exceptions in appropriate cases.

15. MORRIS COHEN & ROBERT BERRING, HOW TO FIND THE LAW 2 (1989). The figures on the federal courtsare available in the 1990 REPORT OF THE FEDERAL COURT STUDY COMMITTEE.

16. Administrative law, according to the classic definition, "includes the entire range of action bygovernment with respect to the citizen or by citizens with respect to the government, except forthose matters dealt with by the criminal law and those left to private civil litigation where thegovernment's participation is in furnishing an impartial tribunal with the power of enforcement."Henry Friendly, New Trends in Administrative Law, 6 MD. BAR J., no. 3 at 9 (1974). The breadth of the

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definition suggests the vast number of sources that lawyers may need to consult: rules andregulations, decisions of administrative tribunals, and administrative rulings in response to re-quests regarding the permissibility of certain types of transactions, such as Internal Revenue serviceletter rulings, or "no action" letters issued by the Securities and Exchange Commission. For adiscussion of the amount of activity generated by administrative agencies, see KENNETH CULP DAVIS,RICHARD J. PIERCE, JR., I ADMINISTRATIVE LAW TREATISE sec. 1.3 (1994):

The Social Security Administration (SSA) provides a particularly good illustration of the increasingchallenge confronted by agency administrators. [In 1987] SSA . . . Administrative Law Judges(ALJs) resolved 320,000 appeals from adverse agency decisions. Congress added to SSA's workloadsignificantly by enacting statutory amendments in 1980 and 1983 that require SSA to make availableadditional procedures designed to enhance the accuracy and consistency of SSA's benefit decision-making. Yet, SSA's workforce. . . declined from 74,880 in 1982 to 69,715 in 1986. The combination ofincreased numbers of cases, enhanced statutory procedures, and decreased resources had thepredictable effect of increasing the time required to resolve each case. . . . The burden on reviewingcourts also increased significantly. In 1985, [federal] district courts issued final orders on review ofSSA disability decisions in 8,960 cases, and the backlog of cases pending judicial review increased to49,638 by the end of 1985.

Id. at sec. 6-7. For a general history of the historical development of the role of administrativeagencies, see id. at 7-31.

17. See, e.g., State v. Gasen, 48 Ohio App. 2d 191, 356 N.E.2d 505 (1976) (holding failure to direct trialcourt's attention to arguably applicable traffic statutes actionable as malpractice).

18. The word is thought to be derived from the Latin tortus meaning "twisted" or "wrong." Torts werenot recognized as a separate field of study until the 20th century, in part because torts developedthrough doctrines of judge-made law rather than statutory mandate, and in part because the reachof tort law is so broad and encompasses so many types of wrongs that it is most frequently definedin negative terms as a civil wrong other than actions sounding in contract or property. See generallyW. PAGE KEETON, DAN B. DOBBS, ROBERT B. KEETON, DAVID G. OWEN, PROSSER and KEETON ON TORTS1-4 (1984).

19. For example, in the area of medical malpractice, courts have held that it constitutes malpractice fora general practitioner to fail to refer a patient to a diagnostic specialist, Weinstock v. Ott, 444N.E.2d 227 (Ind. Ct. App. 1983); for a family practitioner to fail to consult a pediatric cardiologist,Phillips v. U.S., 566 F. Supp. 1 (D.S.C. 1986); or for a construction renovation contractor to fail toconsult a structural engineer where necessary, Cell-O-Mar, Inc. v. Gros, 479 S.2d 386 (La. Ct. App.1986).

20. 530 P.2d 589 (Cal. 1975).21. Accord Baird v. Pace, 752 P.2d 507 (Ariz. Ct. App. 1988).22. See generally PROSSER AND KEETON ON TORTS at 188.23. J. Douglas Peters, Steven K. Nord, & R. Donald Woodson, An Empirical Analysis of the Medical and

Legal Professions' Experiences and Perceptions of Medical and Legal Malpractice, 19 MICH. J. L. REF. 601(1986). The study is interesting in several respects. First, in terms of percentages, lawyers were suedonly about one third as often as doctors. Second, professionals who had not been sued viewed theperceived effects as worse than those who had actually been sued. Third, with respect to all but onearea of the survey, there was no substantial difference of opinion between doctors and lawyers as tomalpractice actions. The one area on which doctors and lawyers differed markedly was whether thepresent system of dispute resolution is fair to the defendant professional. Ninety-four percent ofresponding Detroit doctors thought that the present system was not even reasonably fair, while onlyeighteen percent of lawyers felt the same. Id. at 627.

24. FED. R. CIV. P. 11 (emphasis supplied).25. L. Ray Patterson, A Preliminary Rationalization of the Law of Legal Ethics, 57 N. C. L. REV. 519, 544 (1979).26. 801 F.2d 1531 (9th Cir. 1986).27. 403 P.2d 145 (Cal. 1965).28. Golden Eagle Distr. Corp. v. Burroughs Corp., 103 F.R.D. 124, 129 (N.D. Cal. 1984). The case was

complicated by the fact that the California Supreme Court decision did not itself cite or expresslyoverrule Seely. However, the court reasoned that the two subsequent California appeals cases didcite and question Seely.

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128 S. ]. Adams, M. W. Lien

29. Model Rule 1.3 of the AMERICAN BAR ASSOCIATION (ABA) MODEL RULES OF PROFESSIONAL CONDUCT

provides:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personalinconvenience to the lawyer, and may take whatever lawful and ethical measures are required tovindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to theinterests of the client and with zeal in advocacy upon the client's behalf.

30. One of the most well-known descriptions of the advocate's role is Lon Fuller's:

His task is not to decide but to persuade. He is not expected to present the case in a colorless anddetached manner, but in such a way that it will appear in that aspect most favorable to his client.He is not like a jeweler who slowly turns a diamond in the light so that each of its facets may in turnbe fully revealed. Instead the advocate holds the jewel steadily, as it were, so as to throw into boldrelief a single aspect of it. It is the task of the advocate to help the judge and jury to see the case asit appears to interested eyes, in the aspect it assumes when viewed from that corner of life intowhich fate has cast his client.

Lon Fuller, The Adversary System, in TALKS ON AMERICAN LAW 31-32 (H. Berman, ed., 1971).

A less sanguine assessment of the system comes from Roscoe Pound:

Hence in America we take it as a matter of course that a judge should be a mere umpire, to passupon objections and hold counsel to the rules of the game, and that the parties should fight out theirown game in their own way without judicial interference. We resent such interference as unfair,even when in the interests of justice. The idea that procedure must of necessity be wholly conten-tious disfigures our judicial administration at every point. It leads the most conscientious judge tofeel that he is merely to decide the contest, as counsel present it, according to the rules of the game,not to search independently for truth and justice. It leads counsel to forget that they are officers ofthe court and to deal with the rules of law and procedure exactly as the professional football coachwith the rules of the sport.

Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. REP.395, 405 (1917). For additional readings on the subject, see STEPHAN LANDSMAN, READINGS ONADVERSARIAL JUSTICE: THE AMERICAN APPROACH TO ADJUDICATION (1988).

31. See generally A. Kenneth Pye, The Role of Counsel in the Suppression of Truth, 1978 DUKE L. J. 921,938-39.

32. The ethical codes are grounded in state law. However, most state codes are based on the modelcodes or rules developed by the ABA. The ABA was formed in 1878, but it was not until 1908 that theorganization introduced the CANONS OF PROFESSIONAL ETHICS, 32 guidelines that served asthe model for things to come.

Over the next 60 years, these guidelines were gradually expanded and were succeeded in 1969 bythe MODEL CODE OF PROFESSIONAL RESPONSIBILITY. The Code is comprised of nine Canons,each of which includes Ethical Considerations, which are aspirational, and Disciplinary Rules,which are mandatory and describe the minimum level of acceptable conduct. Within a few years ofthe appearance of the Model Code, every state had adopted a new code in some form.

The Model Code was replaced in 1983 by the MODEL RULES OF PROFESSIONAL CONDUCT. By 1993,38 states and the District of Columbia had adopted all or most of the Model Rules. S. GILLERS, R. D.SIMON, JR., REGULATION OF LAWYERS—STATUTES AND STANDARDS xi (1994).

Many perceive the Model Rules to be an improvement on the Code insofar as the Rules "substi-tut[ed] legal rules for ethical aspirations." DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY—ETHICS BY THE PERVASIVE METHOD 49 (1994). While the Code provided norms and aspirational"ethical considerations," the Model Rules are more mandatory in character.

33. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3(a)(3) (Discussion Draft 1983) provides that "[a]lawyer shall not knowingly . . . (3) fail to disclose to the tribunal legal authority in the control-ling jurisdiction known to the lawyer to be directly adverse to the position of the client and notdisclosed by opposing counsel. . . ." Id.

34. MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-106(B)(l) is virtually identical to the provisionquoted above in the Model Rules.

35. To say that the rules exist is not, however, to say that practicing attorneys are assured of easysolutions to their ethical dilemmas. Attorneys may find themselves in a triple bind, seeking to serve,

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simultaneously, the divergent demands of their duty of candor to the court; their duty of loyalty,zeal, and confidentiality to their clients; their duty of honesty to opposing counsel; and the demandsof their personal moral codes. For a candid discussion of the stress these dilemmas can cause, seeRichard A. Matasar, The Pain of Moral Lawyering, 75 IOWA L. REV. 975 (1990).

36. 469 N.Y.S.2d 467 (N.Y. App. Div. 1983).37. Accord Northwestern Nat'l Ins. Co. v. Guthrie, 1990 WL 205945 (N.D. IL. 1990) (mischaracterization

of case by omission of sentence creating exception, violative of Rule 3.3(a)(3) of ILLINOIS RULES OFPROFESSIONAL CONDUCT); 1992 WL 33844 (D.N.J. 1992) (failure to cite adverse authority violative ofRule 3.3. of the MODEL RULES OF PROFESSIONAL CONDUCT). In Telectronics Proprietary Ltd. v.

Medtronic, Inc., 687 F. Supp. 832 (S.D.N.Y. 1988), the court went so far as to suggest that counselhad an obligation to disclose even non-binding authority in another jurisdiction, where the othercase involved identical issues.

38. With respect to factual misstatements, Model Rule 3.3, in pertinent part, states that a lawyer may notknowingly

(1) make a false statement of material fact . . . to the tribunal;(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a

criminal or fraudulent act by the client; . . . or* * * **

(4) offer evidence that the lawyer knows to be false.

39. Perhaps the most perplexing case to illustrate this conflict, and the case that is surely taught in everyprofessional responsibility class is People v. Belge, a New York case, involving criminal defenseattorneys who learned of the location of the corpses of two women murdered by their clients. Eventhough the victims' families were frantic to recover the bodies, the attorneys did not reveal theirwhereabouts until their clients had made public confessions. The attorneys' conduct was ques-tioned, but the highest court in New York affirmed dismissal of criminal indictments because of anattorney's obligation to maintain the confidentiality of their clients. 359 N.E.2d 377 (N.Y. 1977).

40. In 1973 then Chief Justice Warren J. Burger delivered a stinging indictment of the standard ofAmerican advocacy in The Special Skills of Advocacy: Are Specialized Training and Certification AdvocatesEssential to our System of Justice? 42 FORDHAM L. REV. 227 (1973). Burger called for us to emulate theBritish education of barristers, which involves specialized training, an apprenticeship period, andspecial attention to ethics and deportment. The Chief Justice went so far as to say that "as a workinghypothesis . . . from 1/3 to 1/2 of the lawyers who appear in the serious cases are not really qualified torender fully adequate representation." Id. at 234. But see Roger C. Cramton & Erik M. Jensen, TheState of Trial Advocacy and Legal Education: Three New Studies," 30 J. LEG. EDUC. 253 (1979) (challengingBurger's underlying assumptions).

Two decades later Chief Justice Burger has not given up the battle cry; he has recently written ofwhat he sees as the lamentable state of the profession in The Decline of Professionalism, 61 TENN.L. REV. 1 (1993).

41. This is known as the "Hand" formula, after the interestingly named Judge Learned Hand. In U.S. v.Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), Judge Hand concluded that if the burden (B) ofpreventing a harm is less than the probability of an injury (P), multiplied by its gravity (L), (B < P ×L), then the defendant should be found negligent. Conversely, if the burden was greater than thelikelihood of the injury, factored by its gravity (B > P x L), the defendant should not be foundnegligent.

42. ABA COMM. ON ETHICS AND PROFESSIONAL RESPONSIBILITY, FORMAL OP. 93-379 (1993) (reserving thisquestion).

43. Since the obligation of competence is so fundamental, some comment on the history and develop-ment of the rules governing the ethical conduct of lawyers may prove helpful. These rules springfrom a number of sources. The principal sources have long been the constitutions of the UnitedStates and the several states, statutes and the common law, the American Bar Association formula-tions, and ethical rules as adopted by the various jurisdictions, often based on the model provisionsdrafted by the American Bar Association.

In addition, attorneys may look for guidance to court and bar association interpretations of ethicalrules, rules of evidence and procedure, administrative regulations, the attorney's perception ofsociety's prevailing standards, and the attorney's personal integrity and moral code.

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130 S.}. Adams, M. W. Lien

44. Article 1 focuses on the role of the attorney within the lawyer-client relationship, stressing the needfor competence, diligence, and full communication with the client, as well as the need for fullconfidentiality and the avoidance of conflicts of interest. Articles 2 and 3 examine the lawyer as acounselor and as an "officer of the court," with the attendant duty faithfully to report the facts andthe law to the court. Article 4 covers the attorney's responsibilities to third parties, while Article 5deals with responsibilities within a law firm and the unauthorized practice of law. Article 6 dealswith the attorney as a public servant, providing legal services to the indigent and engaging in lawreform. Finally, Article 7 covers lawyer advertising of services, and Article 8 discusses bar admis-sion and disciplinary measures for attorney misconduct.

The Rules have been amended to reflect Supreme Court decisions and to provide further clarifica-tions.

45. The Preamble sets out the three essential roles of the attorney: "[i] A lawyer is a representative ofclients, an officer of the legal system and a public citizen having special responsibility for the qualityof justice."

46. For most state courts, the measure of competency to practice is graduation from an ABA accreditedlaw school and passage of the bar examination (typically a two- or three-day examination, acomponent of which is a multi-state section). In addition, all states have instituted their ownschemes for determining the moral character and fitness of the prospective members of the bar,using the ABA guidelines. Because lawyers are considered to be officers of the court, the courtsthemselves, often with the assistance of the state bar associations, have taken control of attorneyadmissions and rules of attorney conduct.

47. To this end, a number of state bars have instituted "continuing legal education," a scheme whichimposes an annual obligation on the membership to take a proscribed number of instructionalhours in the legal area of the practitioner's choice.

48. Attorney neglect is the most common competency complaint and may stem, in large part, fromattorneys taking on more work than they can effectively handle.

49. The California competence rule provides some helpful elaboration by stating that a competentattorney must have "the learning and skill ordinarily possessed by lawyers in good standing whoperform, but do not specialize in, similar services practicing in the same or similar locality andunder similar circumstances." CALIF. R. 6-101(1).

The Sixth Amendment to the United States Constitution guarantees that criminal defendants willreceive effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 690 (1984), theCourt defined ineffectiveness as "whether, in light of all the circumstances, the identified acts oromissions were outside the wide range of professionally competent assistance." As a practicalmatter, this argument is typically unsuccessful unless the standard of representation has beenegregiously substandard.

50. Rule 1.1, Comment [1]. Competence may hinge on personal incapacity, perhaps related to physical ormental illness or substance abuse, or to the fact that the attorney is not conversant with a particularfield of non-legal knowledge essential to the case. The latter incompetence, which is sometimesremedied by employing an expert in the field to advise, is increasingly common in cases involvingtechnological or medical matters.

51. Id. at Comment [2].52. See ANDREW L. KAUFMAN, PROBLEMS IN PROFESSIONAL RESPONSIBILITY, 641-44 (1989) (discussing

different states' approaches).53. Chief among these are the requirements that any cause of action be filed in a timely manner, that

proper service be made on the relevant parties, and that administrative remedies be sought whenrequired.

54. "Legal Education and Professional Development—an Educational Continuum," REPORT OF THETASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP 1992.

55. The classic law school preparation entailed the study of substantive law only: contracts, torts,criminal law, and so forth. Following World War II, however, when the expansion of law schoolsbegan, attempts to train attorneys in the skills (as opposed to the substance alone) of practicing lawbegan to expand beyond the traditional first year moot court exercise. Most law schools haveinstituted freestanding legal writing and research programs to teach the most basic of communica-tion, analytical, and research skills—a process once dealt with in a rather haphazard manner. Inaddition, many law schools have recognized the need to train students to draft legal documents; to

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Ethics, Accountability, and Cost-Beneßt Analysis in Legal Research 131

provide supervised clinical experience with actual cases; to teach trial advocacy techniques; totrain students to handle ethical dilemmas, to negotiate, and to consider alternative dispute resolu-tion techniques; and to coordinate internships for credit with government agencies and judges'chambers.

56. Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, American BarFoundation Working Paper #9212.

57. Id. at Table 4.58. See, e.g., DEBORAH L. RHODE, ETHICS BY THE PERVASIVE METHOD (1994); Teaching Legal Ethics: A

Symposium, 41 J. LEG. EDUC. 1 (1991) (a collection of articles describing the latest thinking on teachingprofessional responsibility); David T. Link, The Pervasive Method of Teaching Ethics, 39 J. LEG. EDUC.485 (1989) (describing a three-year ethics program at Notre Dame Law School); Richard A. Matasar,Teaching Ethics in Civil Procedure, 39 J. LEG. EDUC. 587 (1989).

One possible risk inherent in adopting such a pervasive method has been pointed out in thecontext of a science curriculum by E. D. Pellegrino in Character and the Ethical Conduct of Research, 2ACCOUNTABILITY IN RESEARCH 1,7 (1992): While it would be ideal to incorporate ethical inquiries intoeach course, "[w]hat is everybody's responsibility ends up being no one's."

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ethics, accountability, and cost-benefit analysis in legal research

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