Historians and Access to the Files of Lawyers

::  Historians and Access to the Files of Lawyers ::
March 7, 1994[1]

Organization of American Historians
Ad Hoc Committee on Access to Lawyers’ Files

Kermit L. Hall (chair)
Paul Finkelman
N. E. H. Hull
Stanley N. Katz

Background

The Executive Board of the Organization of American Historians (OAR) in September 1991 formed the Ad Hoc Committee on Access to Lawyers’ Files. It directed the committee to report on and make recommendations regarding the mounting problems that historians and other scholars and researchers face in gaining access to the files of lawyers and law firms. The OAR board also directed the committee to consult with the American Bar Association about the ethical and practical matters associated with the issue of access and to seek the ABA’s assistance in formulating guidelines governing future policy.

The Problem:

Historical Resource and Ethical Dilemma

Historians and lawyers are often, although not always, at odds over the disposition of the latter’s papers. The reasons spring from their competing professional obligations. Historians and other scholars and researchers are duty bound to seek any and all materials that may shed light on the past. The process of research cannot be satisfied exclusively by public, published materials. Historians recognize that law plays a dynamic role in society, and a sympathetic and professional assessment of that role must depend on private materials, such as client files and attorney work product, including memoranda, notes, and client correspondence. Much of what is most important in the legal process can only be gleaned from an understanding of the business transacted in and through a lawyer’s office. There, hidden from the public eye, the attorney and client depend on the concept of confidentiality to promote the frank and full discussion of issues so essential to the adversarial process. For a lawyer to release materials that a client considered confidential would be a profound breach of personal trust and professional duty.

These materials raise other dilemmas for lawyers and law firms. First, not everything contained in the record of a client may be the property of the client. Lawyers and law firms have an independent interest in their work product, especially in an era in which attorney malpractice suits have become common place. There is a lively debate over just who owns what in a client file — the client, the lawyer (or lawyers) that prepared the material, or the law firm? These questions have been addressed in some jurisdictions by law, by custom and habit, and in others they remain unsettled. Some bar associations have provided opinions to their members indicating that everything contained in a client file belongs to the client, including the work product of lawyers preparing the case; other bar associations have adopted less comprehensive opinions. In short, the concept of what is a client file is dynamic and subject to different interpretation in different places.[2] The committee recognizes, therefore, that any policy regarding access by historians and other researchers to these materials must take account of the different interests represented in the client files and the general work product that went into its preparation.

Second, client files pose an administrative burden for the lawyers and law firms that retain them. The archiving of these materials, especially at large law firms, has become a specialized profession involving records managers and archivists. While these materials may have importance as precedents in dealing with subsequent litigation and client activities, according to a recent report of the Association of Records Managers and Administrators (ARMA) most of these files are never used again.[3]  Indeed, in recognition of the growing mountain of documentation that is associated with modern litigation, more and more firms are taking the approach that these files can be best disposed of by being returned to the client, sometimes with part or all of the associated work product.

Third, lawyers and law firms also recognize that at some point the materials they hold have no significant legal or business value, either to the firm or to the client. Hence, even though lawyers have an obligation to maintain confidentiality for their clients, they also acknowledge that for practical purposes responsibility does not continue in perpetuity. At some point, which in a survey conducted by ARMA ranged from ten to twenty-five years, the records could be destroyed, archived, or otherwise disposed of. What is most telling, however, is that the same survey conducted by ARMA revealed that more than two-thirds (69%) of the firms surveyed had no retention policy at all. Moreover, more than one-half (57%) of the surveyed firms made no provision to ask clients about the disposition of their files.

The ARMA survey suggests then that lawyers and law firms have hardly come to closure on the issue of how to deal with client files and work product, let alone how to treat the question of access by historians and other scholars and researchers to those files. Instead, many firms and lawyers undoubtedly adjust to the circumstances before them, following a rule-of-thumb guide about what to do with their records, some of which may be more their’s than the client’s where work product is involved. Of course, the fact that there are two different interests in the client files — the client’s and the lawyer’s and/or firm’s — does not in any way override the confidentiality issue. It does, however, underscore the complexity of the task of deciding not only what can be released to historians but who can release it. The preponderance of professional opinion among the bar is best summarized by the New York State Bar Association in the following way:

Whenever possible, the client should be consulted concerning the disposition of his files and encouraged to preserve them on his own. Lawyers are advocates and advisors. They are not warehousemen or perpetual repositories for the files of their clients. A good lawyer need not retain his clients by holding on to their files and a poor one will soon learn that such tactics avail him nothing but additional expense.[4]

The access issue is important because the files of lawyers and their clients provide a valuable window on our past. The papers of many prominent lawyers (and their clients) have long been available to the public, not just historians. For example, more than a decade ago Columbia Law School Professors Julius Goebel and Joseph Smith published a five-volume collection of the legal papers of Alexander Hamilton. Today, we have access in published form to the legal papers of John Marshall, John Adams, Daniel Webster, Andrew Jackson, and soon Abraham Lincoln. Moreover, libraries, archives, and other repositories contain the papers of thousands of lawyers, and many of these collections embrace materials dealing with the most intimate details of the preparation of cases.

Historians and other scholars and researchers use the papers of lawyers in a variety of ways. Biographies of important lawyers benefit from the case files and other documentation of lawyer’s practice. Without access to such papers, Professor William Harbaugh could not have written A Lawyer’s Lawyer, his brilliant biography of John W. Davis, Studies of litigation also rely on case files and other papers in the hands of lawyers. In writing Simple Justice, the classic study of Brown v. Board of Education (1954), Richard Kluger used the papers of attorneys involved in the litigation, including the files of the N.A.A.C.P.’s Legal Defense and Education Fund. Mark Tushnet’s analysis of the pre-Brown litigation strategy of the Legal Defense and Education Fund would have been impossible without access to the Fund’s legal files. These are only a few of the examples of the way in which access to such materials mold public understanding of the most important figures and events in American history.

We need to remember, as well, that what makes client files and work product valuable is the influential role that the bar has played in our society. Alexis de Tocqueville probably overstated the matter when he observed in the 1830s that lawyers were America’s only true nobility. Still, there is no doubt that the legal profession has been critical in shaping our public policy and private lives through the day-to-day practice of their craft. The more Americans know about this important profession, the more likely they are to understand its role. At a time when hostility toward lawyers is at record levels, better understanding of the bar and its works makes good professional and social sense. Similarly, the more the profession understands itself as revealed through the lens of history, the better it will be able to serve society. Scholarship based on the best historical evidence is vital to both ends.

The public’s interest in an accurate rendition of the past as revealed, at least in part, through the papers of lawyers collides with a competing social interest in maintaining the integrity of lawyer-client confidentiality. Buried within these contending demands are profound questions about the duty of lawyers to maintain the confidentiality of their client’s records, of the scope of that responsibility after the death of the client, and the right of lawyers to donate their papers to libraries and other research centers for the purpose of enhancing the historical record and providing the basis for future public policy decisions.

These ethical and professional matters have been the subject of intense scrutiny during the past few years because historians and other scholars and researchers have pressed increasingly for access to legal documents of all kinds. At the same time, the bar has become vulnerable to malpractice suits based on charges of professional misconduct. This development has had a chilling effect on much of the discussion about access. The prevailing mood among lawyers on confidentiality poses a major problem in granting historians greater access to their papers. There is simply too much concern among the bar, especially its leaders, that a loosening of confidentiality restrictions will create conditions imposing additional liability on lawyers. For example, the ABA’s Committee on Ethics recently attempted to rewrite the rules governing discretion by lawyers to disclose confidential information in the course of withdrawing from a representation in which a client intended to commit fraud. The ABA membership, however, defeated this effort on the grounds that a more permissive rule would breach confidentiality standards so fully that an obligation to disclose fraud would result in lawyers facing enormous civil damages.

Lawyer groups outside the ABA have had somewhat greater success in dealing with the access issue and the related matter of client confidentiality. The American Law Institute, for example, boldly addressed the matter in Restatement of the Law Third: The Law Governing Lawyers. Section 111, Comment d., Tentative Draft No. 3 (April 10, 1991) includes a paragraph describing the relationship of historians to lawyers. It proposes that lawyers cooperate with historians under certain conditions. The Reporters for this part of the Restatement originally drafted a statement dramatically expanding the access by legitimate researchers to the files of lawyers. The drafters, however, ultimately employed language that was cautious enough to satisfy critics (“cooperate carefully”; “long and discreet interval after the representation has ended,” “no reasonable likelihood of risk,” and such).[5]

The Restatement text deserves serious consideration. The American Law Institute, while a private and professional group, commands great respect within the legal community. The inclusion of an official comment in the Restatementendorsing the position that within the constraints of client confidentiality lawyers may share their files with historians offers a starting point for even greater collaboration between the OAH and the ABA.

The Legal Issues of Access

The existing relationship between historians and lawyers over access by the former to the client files and work product of the latter turns on five important matters.

1.              The failure of most firms and lawyers to adopt a records retention and disposition program.

2.              The scope of attorney-client privilege after death and the associated privacy rights of heirs.

3.              The privacy rights of clients after their deaths and the

4.              The effect of statutes of limitations in exposing clients, their heirs, and third parties involved in the legal matter to civil liability as a result of the opening of client files and work product to scholars.

5.              The authority of lawyers to donate to archives the papers of clients and related work product that are of historic significance.

The issue of access to client files and work product has to be addressed as part of the larger problem of records management within law offices. As the ARMA report makes clear, lawyers have frequently neglected this quite practical issue. Clients come and clients go, but many firms seem not to have thought about what should happen to the records that are generated in the process. As a first step, lawyers need, so to speak, to put their own houses in order. Too often lawyers simply ignore the issue of responsible records management, and with it questions of access, by invoking a blanket doctrine of confidentiality. As a result, records get tucked away with little thought about who (lawyer, firm, or client) is responsible for what, let alone who might have access to the materials.

The matter of records management has considerable significance in the mind of the committee, since its members have concluded that the legal considerations are not dispositive of the larger policy issue. There is significantly greater opportunity under existing law for fuller cooperation between historians and lawyers than presently occurs.

Courts generally believe that some form of attorney-client relationship survives the death of the client. Death alone cannot sever what is considered to be one of the most important features of the Anglo-American scheme of justice. Yet most of the cases have involved contested wills and other estate matters. Usually, these cases arise when a family questions the testamentary capacity of the deceased. Attorneys in these cases are often called to testify as to the capacity of the deceased to arrange appropriately the details of his or her estate. In general, courts have held that the attorney-client privilege exists beyond the deceased’s death, although many of these same courts have permitted attorneys to testify about the circumstances under which a will was prepared. Still courts in other states have taken the position that material in these and other circumstances is only privileged if the client meant it to be kept confidential. Moreover, there is nothing in this area of the case law, almost all of which deals with the capacity of attorneys to testify about the actions of their clients, that would prohibit the release of case files after the settlement of an estate.

This last finding is of some importance, since American case law generally holds that the right of privacy dies with the individual. The leading case is Lugosi v. Universal Pictures (Cal. 1979).[6] David A. Elder sums the matter up neatly in The Law of Privacy (1991): “The overwhelming majority of decisions provided that the right of privacy is personal, non-assignable and dies with the holder thereof.”[7] Finally, William A. Prosser, who was one of the nation’s leading authorities on the law of civil wrongs wrote:

There has . . . been a good deal of consistency in the rules that have been applied to the four disparate torts under the common name [of invasion of privacy].  As to any of the four, it is agreed that the plaintiff’s right is a personal one, which does not extend to members of his family, unless as is obviously possible, their own privacy is invaded along with his. The right is not assignable, and while the cause of action may or may not survive after his death, according to the survival rules of the particular state, there is no common law right of action for a publication concerning one who is already dead.[8]

At least on the grounds of privacy, therefore, neither an attorney who gives access nor a historian who uses the materials can be held liable for invading a dead persons’s privacy as a result of using once confidential files.

The privacy issue is important but not dispositive of the confidentiality matter, since third parties might be injured by the release of previously confidential files. All American courts recognize, however, that the liability of the client and the client’s heirs is limited both by statutes of limitations and by the doctrine of laches. Taken together, these provisions have immunized clients and their heirs so that it would be safe for attorneys to release previously confidential information, even if they had a direct impact on third parties to litigation. The ABA has concluded that the existing ethics code provisions on confidentiality are meant to protect a client’s material interests. Therefore, if a client’s material interests were made safe, there would be less reason to insist on maintaining perpetual confidentiality. What is striking in this regard is that in other instances where a client’s material interests are involved, such as contract and tort cases, that interest is deemed to have ended with the running of the statute of limitations. In short, in these and other cases, there is a probable cutoff point at which time clients, depending on which side they occupy, either no longer have a cause of action or are immune from such a cause of action.

There are some obvious but not necessarily fatal impediments to an approach that relies on a statute of limitations concept. Under certain circumstances statutes of limitations are tolled –suspending the running of the statute and in effect extending the period during which actions may be brought. Tolling of the statute is the exception; it only occurs in limited types of cases. For example, cases involving tort suits for latent disabilities or diseases, such as those associated with asbestos. There are also examples in American law of tolling statutes involving certain wrongful death actions. These and other actions, however, are themselves limited to some degree by the doctrine of laches, which is applied to restrict the bringing of old and stale complaints to the courts. Hence, extremely old suits are generally barred even if the statute of limitations would have been technically tolled because of, for example, a fraud in an original business transaction. Laches, of course, is a discretionary doctrine that judges can or cannot apply. Nevertheless, there are no cases when a court opened up a transaction involving fraud after 20 years. Consequently, sealing files for twenty years or more should effectively protect clients under these circumstances and permit historians to gain access to client files and work product.

Finally, the lawyers themselves face a complex set of legal barriers in donating and otherwise making accessible historically significant papers, whether work product or client files. That many lawyers wish to do so is made abundantly clear by the thousands of collections of lawyers papers that already are held unencumbered by archives, libraries, and other repositories. Some state bar associations have addressed these matters successfully. The program adopted by the Dane County (Wisconsin) Bar Association’s History and Memorials Committee, for example, provides a model of how other bar associations can assist not only lawyers, but historians, archivists, and librarians. Even with the ABA guidelines urging strict confidentiality of all materials, lawyers continue to donate not only their work product but the files of their clients. In the end, many lawyers believe that they already possess the authority to make decisions about the disposition of confidential materials. Others, however, feel restricted by current law and official pronouncements, refusing to provide access to researchers of any stripe. Somewhat amazingly, in an area so fraught with ethical and professional conflict, neither the bar nor the historical profession have given much guidance to lawyers wishing to make such files available.

In almost all jurisdictions, however, the authority of lawyers over the disposition of their papers and materials is absolute. Under such circumstances, lawyers donating materials always risk their reputations and practice, and that risk has a significant chilling effect. As they presently exist, therefore, ethics and confidentiality rules may well deprive historians and other scholars and researchers, and therefore society as a whole, of a valuable historical resource.

While the ABA’s present guidelines urge strict confidentiality, the ALI Restatement, the pertinent case law, the practice of applying statutes of limitations to similar areas of legal dispute, and the practices of individual lawyers and some local and state bar associations reveal a different pattern. The existing law hardly provides open entre to lawyers files, as it properly should not. The committee believes, therefore, that given current law and practice, its recommendations must take account of the often contending public policy and professional priorities of historians and other scholars and researchers, on the one hand, and lawyers, on the other. Sophisticated researchers understand that other interests must be balanced against open access to documents. The critical question is how to strike that balance.

Recommendations

One

The Committee urges the OAH to invite representatives from the ALI, ABA, the American Society for Legal Historians, and the Society of American Archivists to form a cross-disciplinary working group to facilitate the recommendations that follow.

The existing ad hoc committee has succeeded in framing the major issues involving access, in surveying the relevant law, in making contacts with appropriate representatives of bar and archival groups, and in framing recommendations for action. With these tasks accomplished, the level of what has been informal discussion needs to be elevated and formalized by bringing together the involved parties. The ad hoc committee is struck by the extent to which other groups, including the American Society for Legal History, are working on these issues and, at the same time, how much of this effort has been carried out in isolation from one group to another. Now is the time to bring the major players to the table, a task that the OAR, as a result of its prestige and the ad hoc committee’s activities, is uniquely qualified to fulfill.

Two

That the working group proposed in Recommendation One take as its responsibility the development of a model code that can be used by bar associations, law firms, individual lawyers, clients, historians and other scholars and researchers, and archivists.

The OAR must accept as a matter of policy that issues involving access to the files of lawyers are inherently local and must, therefore, be solved at the local level. A model code approach offers perhaps the best way of bringing national expertise and direction to bear on what is an inherently local matter.

Such an approach has been widely (and successfully) used in bringing about law reform in America’s federalized legal system. For example, the Uniform Commercial Code began as a model of what might be done by the states in structuring commercial relations. This approach involves a professionally diverse national body, such as that suggested above, which undertake the difficult task of establishing a standards and procedures, in this instance involving access to the files of lawyers. Once the model code is formulated, then local groups are left to implement it.

Three

That the working group proposed in Recommendation One also be directed to draft appropriate model documents to fulfill the recommendations made in the rest of this report.

Along with the model code, the working group needs to provide model documents. These should include: (1) a client waiver form; (2) a contract of deposit between the archive and law firm making the deposit; (3) a brochure designed to educate law firms on the value of managing their files for posterity, the ethical issues raised from the perspective of the historian, the lawyer, the client, and the public, the wisdom of and the procedures for depositing those files in archives, and what happens to files after deposit; (4) a brochure for law firms to give clients that would explain some of the same things from the client’s perspective as well as the implications for them of public deposit and their autonomy in determining conditions of disclosure; and (5) a brochure for historians providing guidelines about the ethical, professional, and practical issues surrounding the use of lawyers’ papers.

Four

That the working group proposed in Recommendation One adopt as its guideline that lawyers files, client records, and work product become open after 50 years of the close of the matter, litigation, or transaction or 50 years after the demise of the client or client entity, whichever may be longer.

The law in several jurisdictions and common sense suggest that as times passes concerns about confidentiality diminish and the opportunity for access grows. Eternal confidentiality in private legal materials is just as impracticable as is complete openness.

The threshold issue with these older materials is, however, the same as with current documents: fidelity has to be exercised to the wishes of clients, lawyers, or law firms in releasing materials. Future practice by lawyers and law firms should address the disposition issue, as discussed below, at the beginning and conclusion of a legal matter. That is future practice, however; the current reality is that many clients, their heirs, their attorneys, and even the firms that represented them have long since vanished without giving any directions about the disposition of their files and work product.

The committee believes that any standard developed with regard to the timing of opening files for which no instructions have been left should err on the side of confidentiality. A fifty-year rule has the advantage of insuring that, as we move toward a new era of informed consent on the part of clients, that their interest in providing for the future openness of their records is not lost in current debates about how to dispose of records for which we have no instructions. The proposed standard, as written, provides adequate protection to not only clients but to heirs, lawyers, and law firms.

Five

That the OAH facilitate the establishment of a pilot program composed of a multidisciplinary advisory board to demonstrate the potential of local release and advisory board programs.

Client confidentiality is central to the adversarial process; it must be maintained. Common sense and existing legal precedent suggest, however, that confidentiality grows less important with the passage of time. Present-day client files and work product, if made available beyond the bounds of the lawyer and client, could harm the material interests of the client, his or her lawyer, and the law firm. As the ALI comment makes clear, current materials must be treated with great discretion, and they can be opened, depending on their character, only when consent is given by the client, the lawyer, and perhaps the firm. Any such disclosure, of course, must also take account of the interests of third parties, since damage to them by disclosure could well be actionable. There is no legal or ethical basis upon which researchers could gain access to current materials without the consent of the persons involved. If the parties to a legal matter do not wish to surrender these materials, then scholars will not have access to them. The matter is that simple.

The committee can foresee that parties might, under the appropriate circumstances, be willing to provide access to current client files and work product. Doing so would almost certainly involve a process of negotiation, one in which historians and other scholars and researchers, along with archivists, records managers, clients, and their lawyers would participate. Such an arrangement is contemplated by the ALI comment in urging the establishment of a pre-release screening mechanism, which recommends the use of an agency or judge. The committee recommends, however, that the OAR take a leadership role by establishing a model advisory board in conjunction with the highly successful program already operating under the auspices of the Dane County Bar Association in Madison, Wisconsin.

Such a board would bring together for a three-year trial period bar association leaders, historians, archivists, journalists, and representatives from the public. This board might, for example, be modeled on the human experimentation committees widely used by universities and hospitals around the country in reaching decisions about the allocation of experimental drugs and advanced medical procedures.

The committee believes that matters of access are almost always local in character, that they almost always involve several competing interests, and that there has to be some mechanism to promote trust, collaboration, and cooperation among those competing interests. While the adoption of ALI guidelines would be helpful, their implementation will depend on the creation of effective working relationships among historians, lawyers, and archivists in localities around the country. The OAR should turn its attention to building the initial components of what could become a national network of advisory boards.

The proto-type local advisory board would help, among other things, to bridge the substantial gap that presently separates lawyers and scholars. They also would provide a test-bed for learning more about what would be required to establish a network of such boards on a nationwide basis at the same time that the national working group was formulating a model code and preparing model documents. These boards would use their good offices to facilitate access agreements where current legal materials are involved. Such a service would be voluntary and non-binding. Its duties would be, as the ALI comment suggests, to set policies on a local basis and assess the relative importance of release of the information against confidentiality interests.

Local advisory boards could play an important role in persuading lawyers and firms to adopt modern records management techniques and to seek client consent to disposition of the materials. These boards would also be helpful in sorting through the status of materials subject to the 50 year rule to which historians and other scholars and researchers sought access. In these instances, the presumption would be in favor of disclosure, with the local advisory board asked to make a judgment about why these materials should not be opened rather than why they should stay closed. Certainly after the death of the client, the passage of a half century to safeguard the interests of heirs and third parties, the dissolution or generational turnover in tes without detriment to any of the parties. If such detriment can be shown, then local boards could actually be helpful to clients, lawyers, law firms, and third parties by throwing the weight of expert opinion on the side of confidentiality. In the case of the law firm, those materials can arguably be opened to research, since a board’s actions would be advisory, with implementation based on good will.[9]

A collaboration with the Dane County Bar Association would be productive, as well, in sorting through the issues of how to form, fund, and convene such a group. Since the Dane County group has already made substantial progress on these matters, it makes excellent sense to learn from their experiences.

Six

The OAH accept that client consent and a statute of limitations approach are the cornerstones of a legitimate access policy.

Clients, in most instances, purchase legal services; lawyers and law firms deliver those services. As such, clients have an interest in and a right to control the disposition of the records created in the delivery of that service; lawyers and law firms, as professional business entities, have an interest in and a right to control access to their work product. The bar needs, in the course of adopting modern records management techniques, to build a policy of informed consent about what it is that clients can now take away from their relationship with a lawyer or law firm. An important aspect of informed consent would be to pose directly to clients whether they want the records held by the firm to be released at some specified date in the future. This process should also give clients the right to choose whether they want to hold the completed files themselves. If so, then scholars would be left to deal with individuals and their heirs in gaining access, an arrangement that would sever the knot of contention over the attorney-client privilege and turn the issue into the same sort of question that scholars face today in using the papers of any person — private or public.

A client, of course, might choose to have a law firm retain the records, but in doing so the firm would have to make a calculated business judgment about whether it wants to serve as a warehouse and for how long. If a client wants to have his or her records maintained in perpetuity by a firm, and the firm or lawyer agrees, then there is little else to be done. But the costs of doing so seem excessive, and firms may well find it more useful to put a time limit on holding of the materials with a provision that they be transferred to an archive. At that stage, of course, other restrictions might come into play, as is suggested below, but whether retained by the firm or an archive, records could be sealed for a period and then become open for research.

Indeed, a policy of informed consent and a statute of limitations approach would seem calculated to produce greater access both to client files and lawyer work product. The principle of informed client consent makes obvious from the outset what the costs of openness and confidentiality are for all concerned. Such decision-making seems likely, given the high costs of maintaining original paper and electronic files, of moving us toward a policy of disclosure.

In the end, matters of client consent and statute of limitations approaches depend on local action. That is why the model code and local advisory board schemes offer such great potential as a solution to our present problems. Yet, local bar associations, historical societies, and archives and libraries, supported by a model code on access and the availability of documents informing lawyers and clients of their rights and the interests of the public, can work together to make records available which would otherwise remain closed.

Seven

The OAR should work with the ABA to pass legislation in the House of Delegates that would embrace a slightly amended version of the existing ALI guidelines, support model code legislation, and endorse the concept of local advisory boards.

The current ALI Restatement on the Law Governing Lawyers recognizes the social interest to be served by granting scholars access to client files and the work product of lawyers and law firms. The ALI recognizes that ethical considerations about disclosure need to be balanced against the social interests of scholars in having access to these materials.

The committee, therefore, urges the OAH to work with the ABA and the ALI to achieve the following:

1.              That the existing ALI statement be revised in the following manner:

(A)         A lawyer may disclose information relating to the representation of a client, including information in written form, that the lawyer reasonably believes to be of historical significance, for the sole purpose of research and scholarship use, provided that the lawyer has

(1)         the informed consent of an individual client or entity client, or

(2)         has the consent of a deceased or dissolved client’s representative, or

(3)           has the consent of the lawyer or law firm in the case of work product.

In the absence of consent, the lawyer may disclose the information only after full disclosure to, and consultation with, the client or the client’s representative, and under such terms and conditions as the client or representative may dictate, including any restrictions the client or representative may wish to impose upon access to papers left in the possession of an archivist or institution. However,

(B)         if, after making every reasonable attempt to obtain consent, the lawyer

(1)         is unable to locate the client or a representative, and consent is therefore unavailable, or

(2)         the lawyer makes a good faith determination that obtaining consent will be excessively burdensome or otherwise impracticable, and

(3)         there is no previous agreement with the client regarding the disposition of the information, then

(4)         the lawyer may only disclose the information fifty years after the death of the client or the dissolution of an entity client, subject to whatever terms and conditions the lawyer may deem necessary or appropriate.

(C)         For example, local advisory boards, composed of historians, archivists, bar association leaders, and public representatives might lend their collective judgment to make available both current and past documents and other materials in client files and lawyer and law firm work product, doing so within the scope of the fifty-year rule described above.

This revised wording, which could be applied not only to the ALI statement but to a model code, makes an exception to the confidentiality requirement rather than placing a blanket time limit on the duty of confidentiality. Such an approach preserves the commitment to the time-honored value of confidentiality in lawyer-client relationships. It would also, however, allow a lawyer to reconcile the duty of confidentiality with the interests of historians, scholars, and society generally. It also provides a mechanism by which to bring together the parties interested in the matter, and to do so in a non-adversarial way. Such an arrangement would provide a narrow channel through which model codes may except information beneficial to society from the ethical requirement of strict confidentiality. Hence, a lawyer would be permitted, but not required, under very tight circumstances to disclose the information, and do so in the case of current materials with the support of the larger community as it was represented through the advisory board. At the same time, clients would retain their freedom to impose whatever restrictions the client desires as a condition of the client’s consent.

Repositories have responsibilities in these matters also. Often archives receive lawyer’s files without any documentation concerning permission to use. At the least, the repository should make clear what position it takes with regard to access when the materials are deposited. The Library of Congress, in the judgment of the committee, correctly provides that these materials are open regardless of the circumstances of the client whose privacy might be invaded.

Some clients, of course, will never consent; some lawyers and law firms will never release their work product. More significantly, however, the proposed amendment to the ALI statement would mean that in cases where consent by the client was not available, the lawyer holding the files would have an opportunity to impose whatever restrictions he or she wishes in light of the type of documents in the collection and the specific information that they contained.

This recommendation leaves in place the policies that form the core of the lawyer’s ethical duty and also provides counsel and his or her firm the opportunity guard their work product. Lawyers must maintain their moral obligation to safeguard client “secrets” and promote free and open communication between client and lawyer. Lawyers simply cannot donate materials without seeking a client’s consent. Under such circumstances, a client will still be secure in revealing confidences of any nature to the lawyer, because the client knows that the lawyer can reveal no information whatsoever against the client’s wishes. The client’s future interest in confidentiality is protected as well. The client’s estate must give its consent to disclose. In the absence of a representative of the estate and specific instructions, the materials would become available 50 years after the closure of the estate. Of course, a client can enter into an agreement with his or her lawyer that the lawyer will never reveal all or any portion of the information relating to a particular matter.

Eight

That the OAR encourage lawyers and law firms to adopt modern records management policies.

Without better records management, the issue of access to client files and lawyer work product becomes hopelessly muddled. There are, as the ARMA report indicates, firms that have already adopted modern records management programs. These firms offer a model for the rest of the profession about how to control the disposition of their records and those of their clients. The committee believes that lawyers and law firms are most likely to donate their records when they are certain of the contents. Modern records management practices stress that the best way to put client files work product in order is at the initiation of a legal matter. An important part of that management process is a clear identification of what records belong to whom and how they will be disposed of when the matter is settled. In this regard, archivists, historians, and records managers can be of great assistance, either in offering individual lawyers and law firms advice about how to deal with their records or, in the case of large firms, becoming part of the staff, as they already are in several of the nation’s most important firms. Such individuals should form the critical link between historians and other scholars and researchers, on the one hand, and lawyers, law firms, and clients on the other.

 



[1]      During the past sixteen months, the committee has consulted widely. It extends particular thanks to Professor Charles Wolfram, Cornell Law School; Professor John Leubsdorf, S.I. Newhouse Center for Law & Justice, Rutgers University, Newark; Dr. Alonzo Hamby, Ohio University; William Josephson, Esq., Fried, Frank, Harris, Shriver & Jacobson; and George Kuhlman, staff attorney, Center for Professional Responsibility, American Bar Association. The committee also received valuable comments from the following: R. Michael McReynolds, Director, Textual Reference Division, National Archives; Richard Kiumpenhouwer, Archivist, The Legal Archives Society of Alberta; Menzi L. Behrnd-Klodt, Klodt and Associates, Madison, Wisconsin; Dr. DeLloyd J. Guth, Professor of Law and Director of the Canadian Legal History Project, The University of Manitoba; Donald A. Ritchie, Associate Director, Historical Office, United States Senate; Dr. Cynthia Harrison, Chief, Federal Judicial History Office, and Professor Harold M. Hyman, Department of History, Rice University.

[2]      Helen Andrews, et al., A Report on Issues Surrounding Retention of Client Files in Law Firms (ARMA International: Prairie Village, Kansas, 1993), 11-13.

[3]      Ibid., p.4.

[4]      New York State Bar Association Opinion 460.

[5]      The pertinent paragraph reads as follows: “It is consistent with this Comment for a lawyer to cooperate carefully with efforts to obtain information about clients and law practice for public purposes, such as historical research. Thus, a lawyer may cooperate with an historian researching the history of a law firm’s representation of members of an industry at a long and discreet interval after the representation has ended. So long as sufficient time has passed and the nature of the information is such that disclosure poses no reasonable likelihood of risk to the material interests of the client, such limited disclosures are justifiable in order to further public understanding of the nature of law practice and of the workings of legal institutions. The limitation to instances in which there is no reasonable likelihood that the client would suffer no adverse, material effects applies regardless of whether the representation continues or is at an end. Because of the breadth and indefiniteness of the confidentiality rules, it may be desirable to create mechanisms by which lawyers may obtain pre-release clearance for any agency or judge to assist scholarly research. The procedure should provide for notice to the client or the client’s representatives to intervene. The procedure could permit either the agency or judge to weigh the relative importance of release of information in the circumstances and the magnitude of any risk of impairing confidentiality interests.” A similar balancing standard has been suggested for post-death waiver of attorney-client privilege in cases of need and undue hardship. See paragraph 127, Comment d.

[6]      603 P.2d 425, 429-439 (Cal. 1979) . The court held: “It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the persons whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded.  Further, the right does not survive but dies with the person.” See p. 430.

[7]      See David A. Elder, The Law of Privacy (New York: Clark, Boardman, Callaghan, 1991), 403.

[8]      William L. Prosser, Handbook of the Law of Torts, 4th ed. (St. Paul: West Publishing Company, 1971), sec. 117, pp. 814-815.

[9]      Bonnie Hobbs, “Lawyers’ Papers: Confidentiality versus the Claims of History,” Washington and Lee Law Review 49 (1992): 179-211.